(Wikipedia)

A doctor should have been allowed to testify that the impact of a Greyhound bus could have caused a limousine driver’s stroke minutes after the two vehicles collided, a divided state appeals panel ruled Tuesday.

The decision reversed a trial judge who excluded the testimony on the grounds that it relied on a novel theory.

Appellate Division, First Department Justice David Saxe (See Profile) wrote for the panel in Sadek v. Wesley, 108589/07, that Supreme Court Justice Eileen Rakower (See Profile) not only should have allowed the testimony, but permitted it even without a Frye hearing.

Justices Angela Mazzarelli (See Profile) and Sallie Manzanet-Daniels (See Profile) joined in the opinion. Justice Karla Moskowitz (See Profile) concurred separately, saying that while the evidence should have been allowed, Rakower was right to hold a hearing.

Justice Peter Tom (See Profile) dissented, saying that the majority had opened the door to admitting highly speculative, weakly supported theories as evidence in court.

The accident took place in October 2006. The plaintiff, Kamal Sadek, then 46, was driving his limo and collided with a Greyhound bus as both drivers were turning into the entrance to the Lincoln Tunnel in midtown Manhattan. Sadek alleges that his head was slammed into the side window of his car. Sadek and the bus driver, Aaron Jenkins, both got out and exchanged angry words. During this exchange, Sadek felt faint and dizzy, began shaking and had to sit down. He then passed out and was taken to St. Luke’s Hospital.

Sadek was diagnosed with an embolic stroke, a type of stroke caused when part of a blood clot somewhere other than the brain breaks off and becomes lodged in the brain. An echocardiogram and a magnetic resonance angiogram revealed a large blood clot in one of Sadek’s major artery and plaque build-up in his aorta. He was prescribed aspirin and Plavix, an anti-clotting drug, and discharged.

The stroke left Sadek with slurred speech, weakness and problems with balance. He is unable to work and needs a cane to walk.

In 2007, Sadek sued Jenkins, named in the suit as Jenkins Wesley, and Greyhound, alleging that Jenkins was at fault for the accident and that it triggered his stroke. He planned to use Nabil Yazgi, the director of New York Presbyterian Hospital’s stroke center, as his expert witness. In a report to the court in 2010, Yazgi said he planned to testify that there was a “probable causal relationship” between the accident and the stroke, but his report did not specify how the accident might have caused the stroke.

In 2011, Yazgi submitted a supplementary report in which he noted that follow-up tests performed on Sadek about eight weeks after the accident showed no sign of the clot and plaque found in the first tests. Yazgi said that the discrepancy raised the possibility that the first tests had been wrong. However, he added that if the first tests were right, and there really was a clot, “trauma could feasibly have dislodged it, or a portion of it, causing an embolic stroke.”

After the jury was empaneled, the defendants filed motions in limine seeking to preclude all seven of Sadek’s expert witnesses. Rakower granted the motion as to Yazgi, though she reserved judgment on the rest. She said that Yazgi’s testimony must be excluded because his second report, which took note of the contradictory test results, failed to establish causation.

Sadek then offered neurological expert Sang Jin Oh, who said he was prepared to adopt the opinion in Yazgi’s first report. The defendants objected to Oh too, partly on the same grounds as Yazgi and partly on the grounds that Oh was putting forth a novel medical theory.

Rakower ordered a hearing pursuant to Frye v. United States, 293 F.1013 (1923) to decide whether the testimony was admissible. In Frye, the U.S. Supreme Court held that an expert opinion must be based on science that is generally accepted in the relevant scientific community.

To support his position, Oh pointed to an Israeli study of 150 elderly stroke victims in which more than 20 percent experienced “sudden changes in body position” in the two hours before their strokes. He also pointed to an 11-year-long Finnish study of about 2,300 male volunteers that found a correlation between high blood pressure and stroke risk. Oh said this supported the idea that a sudden spike in blood pressure caused by a traumatic accident could cause an embolic stroke.

Following the Frye hearing, Rakower precluded Oh’s testimony, finding that his theories were not generally accepted in the medical community. Because the stroke was the only serious injury Sadek was alleging, he had no case without Oh’s testimony. Rakower dismissed the suit, and Sadek appealed.

Saxe, reversing, first noted that Yazgi’s testimony should not have been excluded. While his supplemental report could have been used to impeach him and cast doubt on his theory, Saxe said, it did not invalidate his opinion.

Saxe further ruled that Oh should have been allowed to present his “unremarkable” theory of causation because the scientific studies he cited provided “reasonable quantum of legitimate support” for it, quoting Frye. In fact, Saxe said, those studies were enough to make a Frye hearing unnecessary.

Saxe also criticized the defendants for the timing of their motions in limine.

“Finally, we find it troubling that defendants waited until the day the jury was empaneled to serve seven in limine motions to preclude all seven of plaintiffs’ expert witnesses, although the date on their motion papers indicates that they were ready to be served more than two weeks earlier,” he wrote. “In effect, defendants’ strategic decision created something akin to an ambush.”

Moskowitz concurred that the testimony should be allowed, but disagreed that Oh’s theory was “unremarkable” and required no Frye hearing. She noted that the defendants’ own medical expert, Alan Segal, strongly disagreed that the medical literature supported Oh’s theory.

“In this context, there is no basis to simply tacitly accept, as the majority appears to do, that a sudden spike in systolic pressure could cause plaque to rupture and emboli to break off immediately after a stressful event like a car accident,” she wrote.

‘Untested Theory’

Tom said in his dissent that Rakower’s ruling should have been affirmed because the two studies Oh cited did not show that his theory was generally accepted by the medical community, as required by Frye.

The Israeli study looked at only 150 patients, most much older than Sadek, and found only a weak association between trauma and strokes.

“An isolated and inconclusive study suggesting that, in a minority of the patients interviewed, there was a correlation between a stroke and various possible causative factors is wholly inadequate to fulfill plaintiff’s burden to demonstrate that it is generally accepted within the medical community that a stroke can be caused by a vehicular accident, such as the minor collision between the limousine plaintiff was driving and defendant’s bus,” he wrote.

The Finnish study, Tom said, was not relevant to Sadek’s injury because it only established a link between high blood pressure and long-term stroke risk.

“The effect of the majority’s contrary decision is to eviscerate the Frye rule and permit plaintiff to present to the jury an untested theory that has not gained acceptance in the medical community,” Tom wrote.

Sadek is represented by Robert Skoblar, who said he was “very pleased” with the decision.

Skoblar said the ruling “expounds on when a Frye hearing is necessary and what criteria satisfy the requirements of Frye.”

He also said it was important for rejecting “the inappropriate use of motions in limine,” which “amount to trial by ambush.”

A party that objects to proposed expert testimony should let opposing counsel know by letter well before trial, he said, rather than filing motions as trial is about to begin.

The defendants are represented by Gerald Ford and Diane Ruccia, members at Landman Corsi Ballaine & Ford, who could not be reached for comment.