| Leffler v Feld |
| 2008 NY Slip Op 04133 [51 AD3d 410] |
| May 1, 2008 |
| Appellate Division, First Department |
| Sheila Leffler et al., Appellants, v Michael Feld, M.D.,Respondent. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Richard E. Lerner ofcounsel), for respondent.
Order, Supreme Court, Bronx County (Edgar Walker, J.), entered June 12, 2007, whichgranted defendant's motion for a Frye hearing, unanimously affirmed, without costs.Order, same court and Justice, entered July 18, 2007, which, after the Frye hearing,precluded the testimony of plaintiffs' expert, unanimously reversed, on the law, without costs,and defendant's motion to preclude denied.
The court correctly concluded that the theory of causation in this medical malpractice actionwas a novel one (see Frye v United States, 293 F 1013 [DC Cir 1923]) and thuswarranted a Frye hearing (seeZito v Zabarsky, 28 AD3d 42, 44 [2006]). However, the court erred in concluding thatplaintiffs failed to establish that there is general acceptance in the medical community of a causallink between Altace and the development of pemphigus vulgaris. The medical literature cited byplaintiffs' expert, which included a Food and Drug Administration mandate that pemphigus beadded to the manufacturer's list of adverse reactions to Altace, supported his theory that Altacecan cause pemphigus, thus satisfying the Frye standard (see Zito, 28 AD3d at45-46; DieJoia v Gacioch, 42 AD3d977, 978-980 [2007]; Marsh vSmyth, 12 AD3d 307 [2004]). Concur—Lippman, P.J., Gonzalez, Moskowitz andAcosta, JJ.