N.Y. Top Court Nixes Proof Linking Gas Fumes, Birth Defects

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By Bruce Kaufman

Feb. 11 — The automobile and petroleum industries can breathe a sigh of relief after New York's highest court upheld a ruling barring two scientific experts from testifying that a pregnant woman's alleged exposure to gasoline vapors in a BMW vehicle caused her child's severe birth defects.

The experts didn't rely on generally accepted principles and methodologies in concluding that Sean Reeps was exposed in utero to a sufficient concentration of gasoline vapor to cause his injuries, the New York Court of Appeals said Feb. 11.

Deliberations in the product liability action were closely watched by the motor vehicle and petroleum industries because it involved two scientific experts who claim to have found a previously unproven link between gasoline vapors and birth defects using a controversial “weight of the evidence” method.

The 2008 suit alleges Reeps' severe birth defects were caused by his pregnant mother's exposure in 1992 to gasoline vapors while driving a 1989 BMW 525i for some 6,500 miles with an allegedly defective fuel hose.

Experts' Methodology Faulted

The conclusions of Dr. Shira Kramer, an epidemiologist, and Linda Frazier, an occupational medicine expert, were unsupported by prevailing medical and scientific literature, the court said in answering a certified question.

In forming their conclusions as to causation, the experts improperly relied on reports by the plaintiff's mother and grandmother that the smell of gasoline occasionally caused them nausea, dizziness, headaches and throat irritation, Judge Eugene F. Pigott, Jr. said.

An acceptable methodology might have been an “odor threshold” analysis, which has been admitted in other toxic tort cases, the court said. The odor threshold of a substance is the level at which the substance is capable of olfactory detection, the court said.

Here, however, neither the plaintiff nor his experts identified any text, scholarly article or scientific study that approved of or applied their type of methodology, “let alone a `consensus' as to its reliability,” the top court said.

The experts also contended that they relied on standardized studies of symptoms as a guide when assessing exposures retrospectively.

The court didn't take issue with the scientific validity of controlled studies or their ability to measure symptoms in response to a given exposure. Instead, it said those controlled studies don't support the “inverse approach” the experts employed in this case “working backwards from reported symptoms to divine an otherwise unknown concentration of gasoline vapor.”

The court said it was the plaintiff's burden to show that the methodology his experts employed was generally accepted in the scientific community. Having failed to meet that burden, the court upheld a March 2014 decision for BMW of North America and two dealerships by the New York Supreme Court, Appellate Division, 981 N.Y.S.2d 514 (1st Dept. 2014).

No Shift to Stricter Standards

Court observers eyed the ruling as a vehicle for changing the way expert testimony is assessed in New York, one of a dwindling number of states that adhere to the 1923 Frye “general acceptance” test for evaluating the admissibility of expert evidence.

The test emanating from Frye v United States, 293 F 1013, (D.C. Cir. 1923), is a distant relative to the stricter 1993 standard that guides federal courts, set forth in Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993).

The top court, however, stuck with the venerable Frye standard, and relegated thoughts of a possible future shift to Daubert to a lowly footnote.

BMW is represented by Biedermann Hoenig Semprevivo in New York.

Dealer Martin Motor is represented by Lawrence Worden Rainis & Baro in Melville, N.Y.

Hasell Motors, which serviced the vehicle, is represented by Brill & Associates in New York.

To contact the reporter on this story: Bruce Kaufman in Washington at bkaufman@bna.com

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com

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