The Product Safety & Liability Reporter™ provides updates on significant developments and issues in product safety and liability litigation and regulation, plus analysis from top litigators. Get...
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.
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).
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 email@example.com
To contact the editor responsible for this story: Jeffrey D. Koelemay at firstname.lastname@example.org
The opinion is available at http://www.bloomberglaw.com/public/document/Sean_R__c_Appellant_v_BMW_of_North_America_LLC_et_al_Respondents_.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)