Opinion
2015-0855
09-30-2019
Richard MURRAY and Andrea Murray, Plaintiff(s), v. CAYUGA MEDICAL CENTER AT ITHACA, INC., Defendant.
COUNSEL FOR PLAINTIFF: ANDERSON MOSCHETTI and TAFFANY, PLLC, By: Jeffrey K. Anderson, Esq., 26 Century Hill Drive, Latham, NY 12110 COUNSEL FOR DEFENDANTS: LEVINE GOULDIN & THOMPSON, LLP, By: Margaret J. Fowler, Esq., 450 Plaza Drive, Vestal, NY 13850
COUNSEL FOR PLAINTIFF: ANDERSON MOSCHETTI and TAFFANY, PLLC, By: Jeffrey K. Anderson, Esq., 26 Century Hill Drive, Latham, NY 12110
COUNSEL FOR DEFENDANTS: LEVINE GOULDIN & THOMPSON, LLP, By: Margaret J. Fowler, Esq., 450 Plaza Drive, Vestal, NY 13850
Joseph A. McBride, J.
The case at hand follows a complaint of premises liability after Plaintiff, Richard Murray ("Dr. Murray") fell and was injured on Defendant's, Cayuga Medical Center at Ithaca, Inc. ("CMC"), property. On this motion in limine , CMC is seeking to preclude the specified opinion testimony of Dr. Murray's experts upon the grounds of lack of general acceptance and inadequate scientific foundation, and upon the grounds of interference with the province of the jury and inadmissible evidence. Dr. Murray filed a response in opposition. The matter was scheduled, and each party appeared through counsel, for a Frye Hearing on July 30, 2019. Court received and reviewed said motions, listened to testimony, and reviewed exhibits admitted into evidence and decided; as discussed below.
All the papers filed in connection with this motion are included in the electronic file maintained by the County Clerk and have been considered by the Court.
BACKGROUND FACTS
On April 24, 2015, while working as an emergency medicine physician at CMC, Dr. Murray fell and injured his leg at a drainage inlet outside the ambulance entrance to the emergency department that he routinely used to enter and exit for his shift. Immediately after the injury, Dr. Murray was seen by an emergency room physician who immobilized his knee and Dr. Murray was fitted for crutches. The next day, Dr. Murray was diagnosed with a quadriceps muscle tear involving the vastus intermedius and lateralis muscles centered at the mid and distal musculotendinous junctions. Dr. Murray was prescribed to undergo physical therapy. By May 11, 2015, at his first physical therapy session, Dr. Murray had developed symptoms of numbness, muscle spasms, and pain. Throughout May and June, Dr. Murray's symptoms increased, and he developed additional symptoms including increased unexplained falls. After Dr. Murray's symptoms increased significantly, he was admitted for a hospital stay and eventually diagnosed with Guillain-Barre Syndrome (GBS).
On November 15, 2015, Dr. Murray and his wife, Andrea Murray (collectively "Plaintiffs") filed a summons and complaint alleging Dr. Murray's injuries and significant disability were sustained after he stepped into the drainage gate on CMC's property seeking recovery under the theory of premises liability. After years of discovery and preparation for trial, Plaintiffs provided expert disclosure on April 10, 2019 and an amended disclosure on June 9, 2019 which opined that Dr. Murray's GBS diagnosis was caused by the muscle tear from the fall on CMC's property. Subsequently, CMC filed this current motion in limine seeking to preclude the opinions of Plaintiffs' various experts on the basis that they are not founded on theories generally accepted in the relevant scientific community. Plaintiffs filed opposition stating that while the result may be novel, the methodology that led to the theory is based on established scientific theory generally accepted in the relevant scientific community and therefore admissible.
The record reflects that it is undisputed that Dr. Murray now suffers GBS. Plaintiffs' experts allege that Dr. Murray's leg injury resulted in a traumatically induced variant of GBS. CMC's experts, on the other hand, allege that there is no scientific basis for the theory that a muscle tear could cause GBS which is most often causally linked to bacterial infections.
The Court examined the submitted moving papers and ordered a Frye Hearing to inquire. On July 30, 2019, at the Frye Hearing, the Court heard relevant testimony and accepted relevant exhibits as evidence. First, the Court heard testimony of Dr. Steven Herskovitz for the Plaintiffs. Dr. Herskovitz, a professor of neurology at the Montefiore Medical Center was qualified as an expert in his field and gave a very in-dept dissertation into his back-ground, the several research studies on the topic, and the scientific methodology to support his opinion.
Dr. Herskovitz explained that in 2010 he and CMC's expert Dr. Stephen Scelsa, co-authored a book on neuropathy with a chapter specifically dedicated to GBS. Dr. Herskovitz reviewed Dr. Murray's medical records and reviewed several retrospective and prospective case studies on the subject. Dr. Herskovitz explained that Dr. Murray suffers from the acute inflammatory demyelinating polyneuropathy (AIDP) version of GBS which is premised in molecular mimicry. A trigger, such as an infection, mistakes the patient's molecules as invaders and inadvertently causes them to attack their own cells: most akin to an autoimmune disease of the peripheral nerves. This response occurs in individuals that are both genetically predisposed and that have experienced an environmental trigger. It is a well-known premise accepted in the scientific community that infections are known triggers for this molecular mimicry that occurs in the AIDP version of GBS. There was no evidence of infection in any of Dr. Murray's medical records. Dr. Herskovitz explained that 50 years of case study research has led the scientific community to believe that surgical trauma can be a trigger GBS under the theory that when a muscle is cut under surgical conditions, there is an antigen release that then takes the form of the molecular mimicry described in the AIDP form of GBS. Dr. Herskovitz then explained that it then follows that regardless if it is surgical "cut" trauma or non-surgical "tear" trauma, the intermuscular nerve fibers are injured causing a stress response analogous to the features of inflammation to the nerve cells in infections. The tissue trauma causes the immune system to release cells to clean up the debris released in the blood nerve barrier. Due to the genetic predisposition in some patients, the immune system sees the newly exposed nerve fibers that are interwoven with the muscles as a foreign antigen causing an attack on the molecular cells on the surface of the nerve tissue. Dr. Herskovitz explained that this scientific response is the same logical sequence that is the premise of GBS.
Following his testimony, Dr. Herskovitz opined within a reasonable degree of medical certainty that muscle tear trauma, much like surgical trauma, can be a trigger of GBS and that more likely than not, Dr. Murray's GBS was triggered by the quadriceps muscle tear.
Next, Dr. Scelsa, a professor of neurology at Mount Sinai, testified for CMC. Dr. Scelsa was too qualified as an expert in his field yet gave a differing opinion as to the cause of Dr. Murray's GBS. Dr. Scelsa reviewed Dr. Murray's medical records and consented that Dr. Murray suffers from the AIDP version of GBS. Dr. Scelsa explained that there must be an antecedent event that triggers GBS. The most common of which is infections, followed very rarely by surgical trauma. Dr. Scelsa strongly disagreed with the quality of the sources in which Dr. Herskovitz based his opinion. Dr. Scelsa stated that there was a tiny increased risk of GBS after surgical trauma and further explained that surgical trauma is not the same as non-surgical trauma in that a cut and a tear are very different. Dr. Scelsa opined that in surgery, the premeditated stress that leads up to the hospital stay alters the immune system and that is the reason for the causal link in those studies. Dr. Scelsa testified there are no large epidemiological studies for the non-surgical trauma to verify a direct correlation. Dr. Scelsa stated that the scientific community does not recognize post traumatic GBS and the few studies in which GBS follows a traumatic event are more likely than not a coincidence. Dr. Scelsa agreed that there were no documented infections in Dr. Murray's medical records, however, he stated that viral infections are common without symptoms. While Dr. Scelsa admitted that there are recorded surgical trauma linked cases, and non-surgical trauma could be possible, he cannot rule it out, he was unable to reach a causal link conclusion with any degree of certainty in this case because there is no scientific data to conclude that non-surgical trauma is a trigger of GBS.
LEGAL DISCUSSION AND ANALYSIS
New York relies on the Frye test for determining the admissibility of novel scientific theory. See Zito v. Zabarsky , 28 AD3d 42 (2nd Dept. 2006). Generally, when a litigant offers expert opinions, the Frye test is applied to determine if the offered testimony is based on scientific principals "only after they have gained general acceptance in the relevant scientific field." Id at 44. "General acceptance does not necessarily mean that a majority of the scientist involved subscribe to the conclusion. Rather it means that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions." Ratner v. McNeil-PPC, Inc. , 91 AD3d 63, 71 (2nd Dept. 2011). "When an expert seeks to introduce a novel theory of medical causation without relying on a novel test or technique, the proper inquiry begins with whether the opinion is properly founded on generally accepted methodology, rather than whether the causal theory is generally accepted in the relevant scientific community." Id. at 71. In fact, making a determination on a novel scientific theory calls for a "determination of its reliability" were "the [science] from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Parker v. Mobil Oil Corp. , 7 NY3d 434, 446 (Ct. of App. 2006). "The focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial." Id at 447. Therefore, "deductive reasoning or extrapolation, even in the absence of medical texts or literature can be admissible if it is based on more than a mere theoretical speculation or scientific hunch. Deduction, extrapolation, drawing inferences from existing data, and analysis are not novel methodologies and are accepted stages of the scientific process." Ratner , 91 AD3d at 74.
In the case at hand, the Court concludes that Dr. Herskovitz' opinion testimony will be allowed at trial. The three reasons as outlined below for Dr. Herskovitz' opinion leads the court to accept his conclusion as a basis for causation based on the deduction, extrapolation, and drawing inferences from the existing accepted scientific theories. First, the temporal relationship between the injury and the GBS in the biological time frame. Second, the lack of a presence of other triggers in this time frame. Finally, a sound biological explanation that trauma causes the autoimmune response antigen release theory. The Court finds that there is a reliable and logical foundation following scientific extrapolation from a generally accepted principal as put forth in Dr. Herskovitz' testimony. As explained in Ratner , general acceptance does not mean that the majority of scientists come to the same conclusion. 91 AD3d at 71. However, the proper inquiry begins with whether the opinion is properly founded on generally accepted methodology, rather than whether the causal theory is generally accepted in the relevant scientific community. Id. at 74. Here, Dr. Herskovitz explained that it is well founded and generally accepted that the AIDP form of GBS is caused by the antigen release theory demonstrated by molecular mimicry usually found in infection. Dr. Herskovitz then sufficiently explains that the scientific community has accepted that surgical trauma has shown these same autoimmune response markers. It then logically follows that non-surgical tear trauma, exposing the nerve fibers in the predisposed individual will trigger the same autoimmune response as the surgical trauma patient even absent infections. Therefore, the Court finds that Dr. Herskovitz established a foundation for the reception of the evidence at trial.
CONCLUSION
Based on all the foregoing, the Court finds that the Defendants' motion in limine to preclude the testimony of the Plaintiffs' expert at trial must be DENIED and the matter should be scheduled for trial in accordance with the decision above.
This constitutes the DECISION AND ORDER of the Court. The transmittal of copies of this DECISION AND ORDER by the Court shall not constitute notice of entry (see CPLR 5513 ).