New York’s Appellate Division, Second Department reversed a trial court order precluding defendants’ expert engineer from testifying, issuing a new trial on the issue of liability in a personal injury action stemming from a collapsed ceiling of a residential apartment. Ghazala, et al. v. Shore Haven Apartment Del, LLC, et al., 2024 NY Slip Op 03681 (2d Dep’t 2024).
At trial, defendants sought to introduce their expert engineer’s testimony as to the materials and manner of construction of the ceiling at issue, as well as the manner in which similar ceilings may detach and collapse without a detectable defect, so as to give notice of a dangerous condition.
The trial court, granting plaintiffs’ application to preclude the engineer’s proposed testimony, declined to conduct a Frye hearing and excluded the expert’s testimony outright. The jury returned a verdict in favor of plaintiffs, and defendants appealed. While New York’s Second Department granted a new trial due to the trial court’s error in precluding the expert’s testimony, the court deemed the trial court’s decision to decline a Frye hearing to be proper.
New York recognizes the Frye rule governing the admissibility of expert testimony at trial. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). “[T]he long-recognized rule of Frye…is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has ‘gained general acceptance’ in its specified field.” People v. Wesley, 83 N.Y.2d 417, 422 (1994), quoting Frye v. United States (293 F. at 1014). A Frye hearing is only applied when expert testimony is based on “novel” scientific or technical concepts. Krackmalnik v. Maimonides Med. Ctr., 142 A.D.3d 1143, 1144 (2d Dep’t 2016).
In Ghazala, defendants’ CPLR 3101(d) expert disclosure indicated the proposed expert testimony was neither so conclusory, speculative, nor baseless to render it inadmissible. Further, and most importantly in understanding the nuances of Frye, the defendant’s disclosure revealed that this expert’s testimony was to be based on the expert’s own personal training and experience. The Second Department noted that expert testimony of this kind is not subject to Frye. See Doviak v. Finkelstein & Partners, LLP, 137 A.D.3d 843, 847 (2d Dep’t 2016). While the trial court in Ghazala erred in precluding defendants’ expert from testifying at all, it properly declined subjecting defendant’s expert to a Frye hearing because any purported shortcomings in the proposed testimony went to the weight to be given his testimony, not its admissibility and could be explored on cross-examination.
This distinction and corresponding Ghazala decision are indicative of the overall purpose of Frye in determining “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally.” People v. Wesley, 83 N.Y.2d at 422. The Frye standard is not to be used to decide whether one expert’s training and experience is “better” than another’s, but only to bar testimony that is founded in the performance of unaccepted techniques within a specific scientific community.
The testimony of an expert engineer at trial is often crucial to assist the jury in understanding otherwise difficult concepts the layperson has no experience in. Ensuring the expert’s testimony is admissible at trial is the first step in providing a successful defense. It is paramount to ensure an expert engineer employs the generally accepted techniques and/or procedures to generate generally acceptable results within the expertise to underly the opinion and successfully pass the Frye standard of admissibility. So long as experts engage in the generally accepted methods within their field, opinions largely based on their training and personal experience within the field do not invoke the Frye rule.
