| Rowe v Fisher |
| 2011 NY Slip Op 01721 [82 AD3d 490] |
| March 10, 2011 |
| Appellate Division, First Department |
| Carol Rowe et al., Appellants, v Norma P. Fisher et al.,Defendants, and New York City Health and Hospitals Corporation,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel),for resopndent.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered May 8, 2009, which,insofar as appealed from as limited by the briefs, granted defendant New York City Health andHospitals Corporation's motion to preclude plaintiffs' expert from testifying that plaintiff CarolRowe should have been provided chelation therapy during pregnancy and to dismiss thatallegation, unanimously affirmed, without costs.
The motion court properly precluded plaintiffs' expert testimony on chelation because theexpert's theories were contrary to the medical literature on the subject and therefore "unreliable"(Parker v Mobil Oil Corp., 7 NY3d434, 447 [2006]).
Furthermore, the court properly precluded the testimony pursuant to Frye v UnitedStates (293 F 1013 [1923]). Although we find that plaintiffs' theory that chelating Carol atthe start of her third trimester would have prevented or reduced the claimed injuries to the infantplaintiff was a novel theory subject to a Frye analysis, plaintiffs failed to rebutdefendant's showing that this theory was not generally accepted within the relevant scientificcommunity. Plaintiffs' [*2]position was based solely on theirexpert's own unsupported beliefs (seeMarso v Novak, 42 AD3d 377, 378-379 [2007], lv denied 12 NY3d 704 [2009]).Concur—Tom, J.P., McGuire, Acosta, Renwick and Freedman, JJ.