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MARKS, O'NEILL, O'BRIEN, ,
DOHERTY Éf KELLY, P.C. www.moodklaw.com
WESTCHESTER COUNTY OFFICE Daniel D. Flynn
580 White Plains Road Member NY Bar
Suite 620 (914) 593-7322
DFlynn@moodklaw.com
Tarrytown, NY 10591
(914) 345-3701 Fax: (914) 345-3743
Via Email : rahenke@nycourts.gov & efile
Hon. Christie D'Alessio, J.S.C.
Dutchess County NYS Supreme Court
10 Market Street
Poughkeepsie, NY 12601
Re; Smith v. Holly Ridge Homeowners Assoc, Inc.
Index #- 2018-51481
Dear Honorable Justice D'Alessio:
This letter is written at the Court's direction and filed on NYSCEF as part of the pending motion
practice record.
Pursuant to the Court's request for case law related to admissibility of Biomechanical Engineer
the Court is directed to the principal that expert witness testimony is tobe admitted to assist the
Jury and finder of fact. The Court has filed on NYSCEF a letter requesting case law on use of a
Biomechanical Engineer expert witness testimony in the context of a trip and fall case. The
Court's request fails to fully appreciate the facts of the case and nature of the expert witness
testimony. The expert testimony will address among other things the facts related to the alleged
accident, plaintiff's testimony of events, photographic exhibits, plaintiff's prior implanted
surgical hardware which failed prior to the alleged accident herein and other significant factors.
The subject Expert Report has been submitted to the Court and is on file in NYSCEF document #
101.
Expert Biomechanical Engineer testimony is proffered to assist the finder of fact in assessing the
nature of an alleged accident and the forces produced in an accident and the significant of these
findings. It iscertainly apparent that a motor vehicle accident in all likelihood is capable of
producing greater force than a trip and fall incident, but the expert testimony of the defense
expert is meant to assist the finder of fact. Any expert is to be assessed by the jury with the
appropriate PJI Instruction 1:90 and the finder of fact is to determine the weight of the testimony.
Biomechanical Expert experts and testimony has been relied upon in New York including in
Chaparro v. Healey Bros., Inc.,2015 N.Y. Misc. LEXIS 4942 (Orange Cty, 2015) in a Motion for
Summary Judgment by Defendants regarding trip and fallat car dealership. Parties submitted in
support of motion and opposition competing engineering expert affidavits as to the causation
involved. The Court denied the motion on the basis that there were competing opinions as to the
causal relation of plaintiff's injuries to the accident at issue.
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Philadelphia Pittsburgh Cherry Hill Wilmington Towson New York
Pennsylvania Pennsylvania New Jersey Delaware Maryland New York
MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C.
January 3, 2023
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In White v. Luna, 139 A.D. 939 (2d Dept. 2016), Defendants appealed from a judgment from
Kings County Supreme Court where verdict on damages was awarded to plaintiff. Judgment
was reversed on appeal due to Supreme Court's precluding a biomechanical engineer from
testifying during damages phase of the bifurcated trial. The Supreme Court erred in denying the
appellants the opportunity to lay a foundation for the proposed expert testimony of their
biomechanical engineer. Wemer v. Sun Oil Co., 65 N.Y.2d 839 (1985); Wichy v. City of New
York, 304 A.D.2d 755 (2003).
In Pomponio v. Lenox Hill Hospital, @020 Misc. Lexis 3295, 2020 NY Slip Op 32288, the
Court references expert testimony and that, Defendant retained Peter Chen, a licensed
professional engineer, who reviewed the pleadings, plaintiffs bills of particulars, discovery
exchanged, deposition transcripts and exhibits from said depositions (Chen affidavit, defendant
exhibit 1).1 On June 18, 2018, Chen conducted an in-person inspection of the rooftop where
plaintiffs accident allegedly took place. Based on his review and inspection, Chen concluded
"with a reasonable degree of scientific and biomechanical certainty that plaintiffs alleged
'defect'
incident was not caused by any in the mechanical room located on the roof of the Uris
Building at Lenox Hill Hospital, and thus no dangerous or defective condition existed that was
the cause-in-fact or a proximate cause of the plaintiffs alleged fall". Chen also concluded that the
roof area and mechanical room were not part of a means of egress or route for escape; the
mechanical room and subject drain were in good condition; and the roof drain strainer measured
approximately 11 inches in diameter and was 2-3.5 inches in height above the crushed rock layer
placed on top of the underlying roof surface. Based on the aforementioned conclusions, Chen
determined that there were no pedestrian or walkway or accessibility requirements under the
1938 or 1968 Building Codes for construction, and that the roof was maintained in accordance
with New York City Building Codes.
In Botfeld v. Friends of Hudson Riv. Park et al,2020 NY Slip Op 32691, (NY Co. Supreme)
Biomechanical Engineer the Court accepted expert biomechanical Engineer Testimony where
defendant argues at length about plaintiffs injuries, contending that there is no proof that her
claimed injuries resulted from the underlying accident. Defendant points to IME reports by Dr.
Ronald Grelsamer, an orthopedist, and Dr. Kevin Toosi, a biomechanical engineer. The former
opines that plaintiffs right hip femoral neck stress fracture could not be caused by an acute or
traumatic injury such as the underlying accident, but rather "is the result of normal stresses
applied to bone an excessive number of times (e.g. stress foot fractures in long distance runners),
or excessive stresses repeatedly placed on normal bone (military march fractures), or normal
stresses applied to abnormal bone (e.g. bones with osteomalacia and/or osteoporosis). Dr.
Grelsamer asserts that the fact that plaintiff did not seek urgent treatment is evidence that she
"
was suffering from a stress fracture. He further claims that the alleged incident not brought the
stress fracture to light, the fracture would have gone on to a being a displaced fracture, a much
replacement."
higher-level injury that can lead to a hip Dr. Grelsamer further concludes that
plaintiff will not suffer from posttraumatic arthritis as a result of the accident, either.
Meanwhile, Dr. Kevin Toosi opines that the force of the door falling onto plaintiff "provided no
mechanisms or loads for a lumbar spinal injury or exacerbation of any existing lumbar spinal
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MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C.
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accident."
pathology that Ms. Botfeld might have before the Toosi maintains that plaintiffs
accident."
claimed injuries are degenerative in nature and "cannot reasonably be attributed to the
In Shah v. Rahman, 167 A.D.3d 671 (2nd Dept. 2018), an automobile accident the Court
considered Expert testimony was given by defendants biomechanical engineer following
plaintiff's moving to preclude defendant's expert pursuant to Frye. Court permitted experts
testimony without holding a hearing to determine admissibility. The Appellate Division agreed
with the determination to permit testimony from defendant's expert without firstholding a
hearing regarding admissibility. "A court need not hold a Frye hearing where . .. itcan rely
upon previous ruling in other court proceedings as an aid in determining the admissibility of the
proffered testimony. People v. LeGrand, 8 N.Y.3d 449 (2007); compare e.g. Vargas v. Sabri, 115
A.D.3d 505 (2014); Gonzalez v. Palen, 48 Misc. 3d 135[A] (2015); ef.Singh v. Siddieque, 52
Misc. 3d 1204[A] (2016). In Shah, the Court and Appellate Division noted that there was a
proper foundation for the admission of the expert opinion.
In Martell v. K&K Auto & Towing Corp., 2013 N.Y. Misc. LEXIS 3699 (Queens Cty. 2013)
defendants'
Plaintiff moved for omnibus motion, including to preclude expert biomechanical
science."
engineer from testifying on basis opinion and testimony would be based on "junk With
respect to ruling on thisaspect of plaintiff's motion, the Court held, that "biomechanical
engineering has been found generally accepted as reliable in the scientific community, and New
York courts have specifically held that a biomechanical engineer is qualified to give an opinion
testimony regarding injury causation. Plate v. Palisade Film Delivery Corp 39 A.D.3d 835
(2007); Valentine v. Grossman, 283 A.D.2d 571 (2001).
In Sarcona v. New York City Tr. Auth., 43 Misc. 3d 1222[A] (Kings Cty, 2014) a bifurcated
premises liability action and trial for personal injuries following a fall. Plaintiff moved to set
aside verdict on liability finding 50% liability against defendant and 50% against plaintiff as
against the weight of the evidence. Plaintiff presented witnesses, including a biomechanical
engineer who testified how plaintiff sustained his injury from his fall, along with other experts
who testified regarding the permanency of injuries alleged. All witnesses were permitted to
testify at the trialof the action.
Similarly the Court is directed to Guerra v. Ditta, 185 A.D.3d 667 (2nd Dept. 2020) in a personal
injury motor vehicle accident the plaintiff moved to preclude the defendant's proffered
biomechanical expert, Kevin K. Toosi, from testifying or, in the alternative, for a hearing
pursuant to Frye v United States (293 F 1013 [DC Cir]). The motion was denied. Toosi testified
at trialthat the plaintiffs injuries could not have been caused by the accident. The jury returned a
verdict in the defendant's favor, finding that the plaintiff did not sustain a serious injury within
the meaning of Insurance Law § 5102(d). The plaintiff moved, inter alia, pursuant to CPLR
4404(a) to set aside the jury verdict on the issue of damages in the interest of justice and for a
new trialon the issue of damages. The plaintiff also moved for an evidentiary hearing to
determine whether one of the jurors committed misconduct and improperly influenced the
verdict. In an order dated July 22, 2016, the Supreme Court denied the motion for an evidentiary
hearing on the issue of alleged juror misconduct. In an order dated May 4, 2017, the court denied
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that branch of the first motion which was to set aside the jury verdict in the interest of justice and
for a new trial on the issue of damages.
1"
In Munoz v. Rock Group NY Corp. 200 A.D. 486 App. Div Dept, 2021) the Appellate Court
held the trial court providently exercised its discretion in denying plaintiffs motion either to
defendants' defendants'
strike answer or preclude biomechanical engineer's testimony at trial(see
Louise v Hampton Jitney, Inc., 193 AD3d 514, 141 N.Y.S.3d 851 [1st Dept 2021]; Rivera v New
York City Hous. Auth., 177 AD3d 499, 112 N.Y.S.3d 72 [1st Dept 2019]). At this stage of the
proceedings, striking the answer or precluding the expert's testimony is too drastic a remedy (see
Rutledge v Petrocelli Elec. Co., Inc., 309 AD2d 506, 765 N.Y.S.2d 243 [1st Dept 2003]).
This Court has accepted the reliability of expert testimony based on biomechanical engineering,
defendants'
and expert's qualifications to opine on that subject are not challenged (see Cabrera v
Port Auth. of N.Y. & N.J., 185 AD3d 491, 492, 128 N.Y.S.3d 1 [1st [*487] Dept 2020]).
The evidence relied upon by defense expert has been disclosed to plaintiff's counsel and there is
no surprise. See, Louise v. Hampton Jitney, Inc. which held preclusion of expert evidence on the
ground of failure to give timely disclosure, as called for in CPLR 3101(d) (1) (i),is generally
unwarranted without a showing that the noncompliance was willful or prejudicial to the party
preclusion"
seeking (Martin v Triborough Bridge & Tunnel Auth., 73 AD3d 481, 482, 901
N.Y.S.2d 193 [1st Dept 2010]).
The Court is directed to a prior case where within plaintiff's counsel sought to improperly
preclude Biomechanical Expert witness testimony which request was improperly granted by the
trialCourt in Dutchess County and resulted in a later mistrial. See, Valentine v. Grossman 283
(2nd
A.D. 2d 571 Dept. 2001). During the trial, the defendants called two biomechanical
engineers to testify that the force generated in the accident was not sufficient to cause a herniated
plaintiffs'
disc. At the request, a Frye hearing (see, Frye v United States, 293 F 1013; cf., People
v Wernick, 89 NY2d 111, 115-116) was conducted to determine whether the scientific methods
used by these experts to reach their conclusions were valid. The trialcourt admitted the
testimony of the first biomechanical engineer, who testified that the accident subjected the
injured plaintiff to a 3.6 G-force. The second biomechanical engineer testified that there was not
enough force generated in the collision to cause a herniated disc. He had arrived at this
conclusion by adopting the calculations of the first biomechanical engineer. The trial court found
the scientific methods used in reaching his conclusions were valid, but rejected his testimony on
relevancy grounds. The trialcourt erred in excluding the testimony of the second biomechanical
engineer on relevancy grounds. That expert testified that in his opinion, the difference between
the force applied in the studies conducted on living people and the force generated in this
collision was not significant. The testimony was clearly relevant. It tended to make the
defendants'
contention, that the accident was not severe enough to have caused the injuries
sustained, more probable (see, People v Fagan, 215 AD2d 686, 687). The weight to be accorded
this expert testimony is a matter to be determined by the jury (see, Coates v Peterson & Sons, 48
AD2d 890). This testimony was also admissible because itwas probative of the central issue of
the case (see, Crisci v Sadler, 253 AD2d 447). Therefore, as the exclusion of this evidence
cannot be deemed harmless, the matter is remitted to the Supreme Court, Dutchess County, for a
new trial on the issue of damages only. In noting the Trial Court's erred the Appellate Court
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noted that "the weight to be accorded this expert testimony is a matter to be determined by the
jury (see, Coates v Peterson & Sons, 48 AD2d 890). This testimony was also admissible because
itwas probative of the central issue of the case (see, Crisci v Sadler, 253 AD2d 447).
1"
The Court is similarly directed to Vargas v Sabri, 115 A. D. 3d 505 (App Div Dept, 2014)
plaintiffs'
where itwas held that the court did not improvidently exercise its discretion in denying
request for a Frye hearing (Frye v United States, 293 F 1013 [DC Cir 1923]) to determine the
admissibility of the anticipated testimony of Dr. McRae, a biomechanical engineer. The fact that
Dr. McRae lacked medical training did not render him unqualified to render an opinion as an
expert that the force of the subject motor vehicle accident could not have caused the injuries
allegedly sustained (see e.g. Melo v Morm Mgt. Co., 93 AD3d 499, 499-500, 940 NYS2d 83 [1st
Dept 2012]). McRae's stated education, background, experience, and areas of specialty, rendered
him able him to testify as to the mechanics of injury (see Colarossi v C.R. Bard, Inc., 113 AD3d
407, 978 NYS2d 148 [1st Dept 2014]).
In Marte v. Germain, Supreme Court of New York, New York County, May 25, 2021, INDEX
NO. 154537/2016, 2021 N.Y. Misc Lexis 2889 2021 NY Slip Opinion 31779. Upon the
foregoing documents, and after oral argument, itwas determined that plaintiff s motion in limine
defendants'
to preclude trialtestimony from proffered biomechanical expert witness, Bradley W.
Probst, MSBME, and related motion for a Frye hearing, are denied for the reasons that follow.
The complaint seeks damages on the allegation that on January 25, 2016, plaintiffs parked 2008
Cadillac Escalade, while plaintiff was therein situated, was negligently struck by a bus owned by
defendant SNT Bus Inc. and driven by the individual defendant, causing serious injuries to
plaintiff as defined in Section 5102 of the Insurance Law. The matter has been referred for a jury
trial. Defendants have proffered as a trial witness a Biomechanical Engineer - Bradley W.
MSBMEl - as noticed in their Expert Exchange Pursuant to CPLR 3101 (d). Mr. Probst
Probst,
defendants'
had prepared a comprehensive report of his findings, addressed to counsel and served
and filed in the action. Based on his consideration of the incident underlying this action, and his
understanding of the incident, Mr. Probst concludes, "[b]ased upon a reasonable degree of
certainty,"
scientific and biomechanical that, inter alia, there is no biomechanical failure
mechanism present in the underlying incident to account for Mr. Marte's claimed cervical,
thoracic, lumbosacral or shoulder biomechanical failures (id. at 12). Plaintiff has moved, in
limine, to preclude any trial testimony from Mr. Probst, submitting the conflicting opinion of his
own selected biomechanical engineer James Pugh, Ph.D., P.E. Dr. Pugh states in his report: "I
."
expect to rebut the findings, testimony, and opinions of defense expert Probst . .. Relatedly,
plaintiff has moved for a Frye hearing (Frye v United States, 293 F 1013 [DC Cir 1923]) to
determine the admissibility of Mr. Probst's anticipated testimony. Significantly, though, Dr. Pugh
does not question Mr. Probst's qualifications as a biomechanical engineer, which are set forth in
detail as an exhibit to the Probst Report. Rather, Dr. Pugh sets forth his own opinions and
conclusions in contradiction with those in the Probst Report, concluding that the medical
procedures undergone by plaintiff in the aftermath of the underlying accident "were necessitated
."
by the accident . .. As plaintiff s counsel confirmed during oral argument, the premise of his
motion is not to question the validity of the discipline of Biomechanics as a whole. Indeed, he
would be very hard pressed to do so given two significant factors: (i)the Appellate Division,
First Department, has already recognized Biomechanics as an admissible form of expert
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evidence (see, Vargas v Sabri, 115 [**3] AD3d 505, 981 N.Y.S.2d 914 [1st Dept 2014]; see
also, Shah v Rahman, 167 AD3d 671, 88 N.Y.S.3d 228 [2d Dept 2018]); and (ii)plaintiffs
counsel has, himself, submitted the Pugh Report, which is, itself,authored by a biomechanical
engineer (Dr. Pugh) and predicated upon biomechanical principles). When asked to explain his
position more clearly, plaintiffs counsel stated the following: Okay, there are no studies, to my
knowledge, in which volunteers with preexisting spine pathology are subjected to a potential
injury in a crash test, all right. Such a test would probably be, per se, unethical, because if you
know that a person is predisposed to injury, has a preexisting physical condition, to put them in a
car run and another car into it,even under controlled circumstances, I don't think that's - I'm
pretty sure that would be unethical.
(Tr. at 7.)But that opinion of counsel - regarding the overall application of biomechanical
science to persons with conditions (as in the case at - comes into
preexisting bar) unavoidably
conflict with appellate authority that has found such science to be relevant in cases involving
plaintiffs with preexisting conditions (see, e.g.,Holmes v Brini Transit Inc., 123 AD3d 628, 1
N.Y.S.3d 27 [1st Dept 2014]; Plate v Palisade Film Delivery Corp., 39 AD3d 835, 835 N.Y.S.2d
324 [2d Dept 2007]).
A review of the case law annexed clearly supports the proposition that New York State Court
have accepted Biomechanical Expert testimony for a considerable period of time and their
testimony is not subject to a Frye or Dauber type challenge.
The Court should note that while Biomechanical Engineers do often opine about significant
mechanical forces this does not minimize the significance of this testimony in a lower speed and
lower impact analysis. Plaintiff's Counsel references the case of Abramson v. Pick Quick Foods,
Inc., but failed to clarify that the Appellate Division reversed the lower Court expert preclusion
Order.
Ve
.
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MARKS, O'NEILL, O'BRIEN, , DOHERTY Éf KELLY, P.C. www.moodklaw.com WESTCHESTER COUNTY OFFICE Daniel D. Flynn 580 White Plains Road Member NY Bar Suite 620 (914) 593-7322 DFlynn@moodklaw.com Tarrytown, NY 10591 (914) 345-3701 Fax: (914) 345-3743 Via Email : rahenke@nycourts.gov & efile Hon. Christie D'Alessio, J.S.C. Dutchess County NYS Supreme Court 10 Market Street Poughkeepsie, NY 12601 Re; Smith v. Holly Ridge Homeowners Assoc, Inc. Index #- 2018-51481 Dear Honorable Justice D'Alessio: This letter is written at the Court's direction and filed on NYSCEF as part of the pending motion practice record. Pursuant to the Court's request for case law related to admissibility of Biomechanical Engineer the Court is directed to the principal that expert witness testimony is tobe admitted to assist the Jury and finder of fact. The Court has filed on NYSCEF a letter requesting case law on use of a Biomechanical Engineer expert witness testimony in the context of a trip and fall case. The Court's request fails to fully appreciate the facts of the case and nature of the expert witness testimony. The expert testimony will address among other things the facts related to the alleged accident, plaintiff's testimony of events, photographic exhibits, plaintiff's prior implanted surgical hardware which failed prior to the alleged accident herein and other significant factors. The subject Expert Report has been submitted to the Court and is on file in NYSCEF document # 101. Expert Biomechanical Engineer testimony is proffered to assist the finder of fact in assessing the nature of an alleged accident and the forces produced in an accident and the significant of these findings. It iscertainly apparent that a motor vehicle accident in all likelihood is capable of producing greater force than a trip and fall incident, but the expert testimony of the defense expert is meant to assist the finder of fact. Any expert is to be assessed by the jury with the appropriate PJI Instruction 1:90 and the finder of fact is to determine the weight of the testimony. Biomechanical Expert experts and testimony has been relied upon in New York including in Chaparro v. Healey Bros., Inc.,2015 N.Y. Misc. LEXIS 4942 (Orange Cty, 2015) in a Motion for Summary Judgment by Defendants regarding trip and fallat car dealership. Parties submitted in support of motion and opposition competing engineering expert affidavits as to the causation involved. The Court denied the motion on the basis that there were competing opinions as to the causal relation of plaintiff's injuries to the accident at issue. (M0372306.1} Philadelphia Pittsburgh Cherry Hill Wilmington Towson New York Pennsylvania Pennsylvania New Jersey Delaware Maryland New York MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C. January 3, 2023 Page 2 In White v. Luna, 139 A.D. 939 (2d Dept. 2016), Defendants appealed from a judgment from Kings County Supreme Court where verdict on damages was awarded to plaintiff. Judgment was reversed on appeal due to Supreme Court's precluding a biomechanical engineer from testifying during damages phase of the bifurcated trial. The Supreme Court erred in denying the appellants the opportunity to lay a foundation for the proposed expert testimony of their biomechanical engineer. Wemer v. Sun Oil Co., 65 N.Y.2d 839 (1985); Wichy v. City of New York, 304 A.D.2d 755 (2003). In Pomponio v. Lenox Hill Hospital, @020 Misc. Lexis 3295, 2020 NY Slip Op 32288, the Court references expert testimony and that, Defendant retained Peter Chen, a licensed professional engineer, who reviewed the pleadings, plaintiffs bills of particulars, discovery exchanged, deposition transcripts and exhibits from said depositions (Chen affidavit, defendant exhibit 1).1 On June 18, 2018, Chen conducted an in-person inspection of the rooftop where plaintiffs accident allegedly took place. Based on his review and inspection, Chen concluded "with a reasonable degree of scientific and biomechanical certainty that plaintiffs alleged 'defect' incident was not caused by any in the mechanical room located on the roof of the Uris Building at Lenox Hill Hospital, and thus no dangerous or defective condition existed that was the cause-in-fact or a proximate cause of the plaintiffs alleged fall". Chen also concluded that the roof area and mechanical room were not part of a means of egress or route for escape; the mechanical room and subject drain were in good condition; and the roof drain strainer measured approximately 11 inches in diameter and was 2-3.5 inches in height above the crushed rock layer placed on top of the underlying roof surface. Based on the aforementioned conclusions, Chen determined that there were no pedestrian or walkway or accessibility requirements under the 1938 or 1968 Building Codes for construction, and that the roof was maintained in accordance with New York City Building Codes. In Botfeld v. Friends of Hudson Riv. Park et al,2020 NY Slip Op 32691, (NY Co. Supreme) Biomechanical Engineer the Court accepted expert biomechanical Engineer Testimony where defendant argues at length about plaintiffs injuries, contending that there is no proof that her claimed injuries resulted from the underlying accident. Defendant points to IME reports by Dr. Ronald Grelsamer, an orthopedist, and Dr. Kevin Toosi, a biomechanical engineer. The former opines that plaintiffs right hip femoral neck stress fracture could not be caused by an acute or traumatic injury such as the underlying accident, but rather "is the result of normal stresses applied to bone an excessive number of times (e.g. stress foot fractures in long distance runners), or excessive stresses repeatedly placed on normal bone (military march fractures), or normal stresses applied to abnormal bone (e.g. bones with osteomalacia and/or osteoporosis). Dr. Grelsamer asserts that the fact that plaintiff did not seek urgent treatment is evidence that she " was suffering from a stress fracture. He further claims that the alleged incident not brought the stress fracture to light, the fracture would have gone on to a being a displaced fracture, a much replacement." higher-level injury that can lead to a hip Dr. Grelsamer further concludes that plaintiff will not suffer from posttraumatic arthritis as a result of the accident, either. Meanwhile, Dr. Kevin Toosi opines that the force of the door falling onto plaintiff "provided no mechanisms or loads for a lumbar spinal injury or exacerbation of any existing lumbar spinal {M0372306.1} MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C. January 3, 2023 Page 3 accident." pathology that Ms. Botfeld might have before the Toosi maintains that plaintiffs accident." claimed injuries are degenerative in nature and "cannot reasonably be attributed to the In Shah v. Rahman, 167 A.D.3d 671 (2nd Dept. 2018), an automobile accident the Court considered Expert testimony was given by defendants biomechanical engineer following plaintiff's moving to preclude defendant's expert pursuant to Frye. Court permitted experts testimony without holding a hearing to determine admissibility. The Appellate Division agreed with the determination to permit testimony from defendant's expert without firstholding a hearing regarding admissibility. "A court need not hold a Frye hearing where . .. itcan rely upon previous ruling in other court proceedings as an aid in determining the admissibility of the proffered testimony. People v. LeGrand, 8 N.Y.3d 449 (2007); compare e.g. Vargas v. Sabri, 115 A.D.3d 505 (2014); Gonzalez v. Palen, 48 Misc. 3d 135[A] (2015); ef.Singh v. Siddieque, 52 Misc. 3d 1204[A] (2016). In Shah, the Court and Appellate Division noted that there was a proper foundation for the admission of the expert opinion. In Martell v. K&K Auto & Towing Corp., 2013 N.Y. Misc. LEXIS 3699 (Queens Cty. 2013) defendants' Plaintiff moved for omnibus motion, including to preclude expert biomechanical science." engineer from testifying on basis opinion and testimony would be based on "junk With respect to ruling on thisaspect of plaintiff's motion, the Court held, that "biomechanical engineering has been found generally accepted as reliable in the scientific community, and New York courts have specifically held that a biomechanical engineer is qualified to give an opinion testimony regarding injury causation. Plate v. Palisade Film Delivery Corp 39 A.D.3d 835 (2007); Valentine v. Grossman, 283 A.D.2d 571 (2001). In Sarcona v. New York City Tr. Auth., 43 Misc. 3d 1222[A] (Kings Cty, 2014) a bifurcated premises liability action and trial for personal injuries following a fall. Plaintiff moved to set aside verdict on liability finding 50% liability against defendant and 50% against plaintiff as against the weight of the evidence. Plaintiff presented witnesses, including a biomechanical engineer who testified how plaintiff sustained his injury from his fall, along with other experts who testified regarding the permanency of injuries alleged. All witnesses were permitted to testify at the trialof the action. Similarly the Court is directed to Guerra v. Ditta, 185 A.D.3d 667 (2nd Dept. 2020) in a personal injury motor vehicle accident the plaintiff moved to preclude the defendant's proffered biomechanical expert, Kevin K. Toosi, from testifying or, in the alternative, for a hearing pursuant to Frye v United States (293 F 1013 [DC Cir]). The motion was denied. Toosi testified at trialthat the plaintiffs injuries could not have been caused by the accident. The jury returned a verdict in the defendant's favor, finding that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The plaintiff moved, inter alia, pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages in the interest of justice and for a new trialon the issue of damages. The plaintiff also moved for an evidentiary hearing to determine whether one of the jurors committed misconduct and improperly influenced the verdict. In an order dated July 22, 2016, the Supreme Court denied the motion for an evidentiary hearing on the issue of alleged juror misconduct. In an order dated May 4, 2017, the court denied {M0372306.1} MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C. January 3, 2023 Page 4 that branch of the first motion which was to set aside the jury verdict in the interest of justice and for a new trial on the issue of damages. 1" In Munoz v. Rock Group NY Corp. 200 A.D. 486 App. Div Dept, 2021) the Appellate Court held the trial court providently exercised its discretion in denying plaintiffs motion either to defendants' defendants' strike answer or preclude biomechanical engineer's testimony at trial(see Louise v Hampton Jitney, Inc., 193 AD3d 514, 141 N.Y.S.3d 851 [1st Dept 2021]; Rivera v New York City Hous. Auth., 177 AD3d 499, 112 N.Y.S.3d 72 [1st Dept 2019]). At this stage of the proceedings, striking the answer or precluding the expert's testimony is too drastic a remedy (see Rutledge v Petrocelli Elec. Co., Inc., 309 AD2d 506, 765 N.Y.S.2d 243 [1st Dept 2003]). This Court has accepted the reliability of expert testimony based on biomechanical engineering, defendants' and expert's qualifications to opine on that subject are not challenged (see Cabrera v Port Auth. of N.Y. & N.J., 185 AD3d 491, 492, 128 N.Y.S.3d 1 [1st [*487] Dept 2020]). The evidence relied upon by defense expert has been disclosed to plaintiff's counsel and there is no surprise. See, Louise v. Hampton Jitney, Inc. which held preclusion of expert evidence on the ground of failure to give timely disclosure, as called for in CPLR 3101(d) (1) (i),is generally unwarranted without a showing that the noncompliance was willful or prejudicial to the party preclusion" seeking (Martin v Triborough Bridge & Tunnel Auth., 73 AD3d 481, 482, 901 N.Y.S.2d 193 [1st Dept 2010]). The Court is directed to a prior case where within plaintiff's counsel sought to improperly preclude Biomechanical Expert witness testimony which request was improperly granted by the trialCourt in Dutchess County and resulted in a later mistrial. See, Valentine v. Grossman 283 (2nd A.D. 2d 571 Dept. 2001). During the trial, the defendants called two biomechanical engineers to testify that the force generated in the accident was not sufficient to cause a herniated plaintiffs' disc. At the request, a Frye hearing (see, Frye v United States, 293 F 1013; cf., People v Wernick, 89 NY2d 111, 115-116) was conducted to determine whether the scientific methods used by these experts to reach their conclusions were valid. The trialcourt admitted the testimony of the first biomechanical engineer, who testified that the accident subjected the injured plaintiff to a 3.6 G-force. The second biomechanical engineer testified that there was not enough force generated in the collision to cause a herniated disc. He had arrived at this conclusion by adopting the calculations of the first biomechanical engineer. The trial court found the scientific methods used in reaching his conclusions were valid, but rejected his testimony on relevancy grounds. The trialcourt erred in excluding the testimony of the second biomechanical engineer on relevancy grounds. That expert testified that in his opinion, the difference between the force applied in the studies conducted on living people and the force generated in this collision was not significant. The testimony was clearly relevant. It tended to make the defendants' contention, that the accident was not severe enough to have caused the injuries sustained, more probable (see, People v Fagan, 215 AD2d 686, 687). The weight to be accorded this expert testimony is a matter to be determined by the jury (see, Coates v Peterson & Sons, 48 AD2d 890). This testimony was also admissible because itwas probative of the central issue of the case (see, Crisci v Sadler, 253 AD2d 447). Therefore, as the exclusion of this evidence cannot be deemed harmless, the matter is remitted to the Supreme Court, Dutchess County, for a new trial on the issue of damages only. In noting the Trial Court's erred the Appellate Court {M0372306.1} MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C. January 3, 2023 Page 5 noted that "the weight to be accorded this expert testimony is a matter to be determined by the jury (see, Coates v Peterson & Sons, 48 AD2d 890). This testimony was also admissible because itwas probative of the central issue of the case (see, Crisci v Sadler, 253 AD2d 447). 1" The Court is similarly directed to Vargas v Sabri, 115 A. D. 3d 505 (App Div Dept, 2014) plaintiffs' where itwas held that the court did not improvidently exercise its discretion in denying request for a Frye hearing (Frye v United States, 293 F 1013 [DC Cir 1923]) to determine the admissibility of the anticipated testimony of Dr. McRae, a biomechanical engineer. The fact that Dr. McRae lacked medical training did not render him unqualified to render an opinion as an expert that the force of the subject motor vehicle accident could not have caused the injuries allegedly sustained (see e.g. Melo v Morm Mgt. Co., 93 AD3d 499, 499-500, 940 NYS2d 83 [1st Dept 2012]). McRae's stated education, background, experience, and areas of specialty, rendered him able him to testify as to the mechanics of injury (see Colarossi v C.R. Bard, Inc., 113 AD3d 407, 978 NYS2d 148 [1st Dept 2014]). In Marte v. Germain, Supreme Court of New York, New York County, May 25, 2021, INDEX NO. 154537/2016, 2021 N.Y. Misc Lexis 2889 2021 NY Slip Opinion 31779. Upon the foregoing documents, and after oral argument, itwas determined that plaintiff s motion in limine defendants' to preclude trialtestimony from proffered biomechanical expert witness, Bradley W. Probst, MSBME, and related motion for a Frye hearing, are denied for the reasons that follow. The complaint seeks damages on the allegation that on January 25, 2016, plaintiffs parked 2008 Cadillac Escalade, while plaintiff was therein situated, was negligently struck by a bus owned by defendant SNT Bus Inc. and driven by the individual defendant, causing serious injuries to plaintiff as defined in Section 5102 of the Insurance Law. The matter has been referred for a jury trial. Defendants have proffered as a trial witness a Biomechanical Engineer - Bradley W. MSBMEl - as noticed in their Expert Exchange Pursuant to CPLR 3101 (d). Mr. Probst Probst, defendants' had prepared a comprehensive report of his findings, addressed to counsel and served and filed in the action. Based on his consideration of the incident underlying this action, and his understanding of the incident, Mr. Probst concludes, "[b]ased upon a reasonable degree of certainty," scientific and biomechanical that, inter alia, there is no biomechanical failure mechanism present in the underlying incident to account for Mr. Marte's claimed cervical, thoracic, lumbosacral or shoulder biomechanical failures (id. at 12). Plaintiff has moved, in limine, to preclude any trial testimony from Mr. Probst, submitting the conflicting opinion of his own selected biomechanical engineer James Pugh, Ph.D., P.E. Dr. Pugh states in his report: "I ." expect to rebut the findings, testimony, and opinions of defense expert Probst . .. Relatedly, plaintiff has moved for a Frye hearing (Frye v United States, 293 F 1013 [DC Cir 1923]) to determine the admissibility of Mr. Probst's anticipated testimony. Significantly, though, Dr. Pugh does not question Mr. Probst's qualifications as a biomechanical engineer, which are set forth in detail as an exhibit to the Probst Report. Rather, Dr. Pugh sets forth his own opinions and conclusions in contradiction with those in the Probst Report, concluding that the medical procedures undergone by plaintiff in the aftermath of the underlying accident "were necessitated ." by the accident . .. As plaintiff s counsel confirmed during oral argument, the premise of his motion is not to question the validity of the discipline of Biomechanics as a whole. Indeed, he would be very hard pressed to do so given two significant factors: (i)the Appellate Division, First Department, has already recognized Biomechanics as an admissible form of expert {M0372306.I} MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C. January 3, 2023 Page 6 evidence (see, Vargas v Sabri, 115 [**3] AD3d 505, 981 N.Y.S.2d 914 [1st Dept 2014]; see also, Shah v Rahman, 167 AD3d 671, 88 N.Y.S.3d 228 [2d Dept 2018]); and (ii)plaintiffs counsel has, himself, submitted the Pugh Report, which is, itself,authored by a biomechanical engineer (Dr. Pugh) and predicated upon biomechanical principles). When asked to explain his position more clearly, plaintiffs counsel stated the following: Okay, there are no studies, to my knowledge, in which volunteers with preexisting spine pathology are subjected to a potential injury in a crash test, all right. Such a test would probably be, per se, unethical, because if you know that a person is predisposed to injury, has a preexisting physical condition, to put them in a car run and another car into it,even under controlled circumstances, I don't think that's - I'm pretty sure that would be unethical. (Tr. at 7.)But that opinion of counsel - regarding the overall application of biomechanical science to persons with conditions (as in the case at - comes into preexisting bar) unavoidably conflict with appellate authority that has found such science to be relevant in cases involving plaintiffs with preexisting conditions (see, e.g.,Holmes v Brini Transit Inc., 123 AD3d 628, 1 N.Y.S.3d 27 [1st Dept 2014]; Plate v Palisade Film Delivery Corp., 39 AD3d 835, 835 N.Y.S.2d 324 [2d Dept 2007]). A review of the case law annexed clearly supports the proposition that New York State Court have accepted Biomechanical Expert testimony for a considerable period of time and their testimony is not subject to a Frye or Dauber type challenge. The Court should note that while Biomechanical Engineers do often opine about significant mechanical forces this does not minimize the significance of this testimony in a lower speed and lower impact analysis. Plaintiff's Counsel references the case of Abramson v. Pick Quick Foods, Inc., but failed to clarify that the Appellate Division reversed the lower Court expert preclusion Order. Ve . {M0372306.1}