First Department Reverses Decision Precluding Expert Testimony on Causation and Condemns “Ambush” Trial Motion Practice

Did a car accident cause plaintiff’s stroke? That is the question recently addressed by the First Department in Sadek v. Wesley. The court reversed a trial court ruling precluding plaintiff’s neurological experts from testifying and dismissing plaintiff’s complaint.

This motor vehicle accident case arose from a collision between a limousine driven by plaintiff Sadek and a Greyhound bus. During the accident plaintiff’s head slammed against his side window. After being transported to the hospital he was diagnosed with an embolic stroke, otherwise known as a cerebral vascular accident (CVA).

The evidentiary dispute at the core of this case was “whether the accident could have caused the embolic stroke plaintiff experienced.” The court held

that the proposed testimony by plaintiff’s experts should not have been precluded. The essence of these witnesses’ position on causation — the unremarkable premise that the physical trauma caused by the motor vehicle collision was a competent producing cause of plaintiff’s embolic stroke — did not require a formal Frye hearing. Moreover, even if a Frye hearing was appropriate, the evidence before the court was sufficient under Frye to avoid preclusion of the testimony.

It also noted that Frye hearings – which “are used to determine whether the experts’ deductions are based on principles that are sufficiently established to have gained general acceptance as reliable” – are of “limited applicability” in a situation, such as the one here, “where the proposed expert testimony concerns a claim that the plaintiff’s injury was caused by the actions taken by the defendants.”

The court concluded with a procedural point regarding the manner in which the issue was presented. After the jury was empaneled, “defense counsel served seven motions in limine seeking to preclude each one of plaintiff’s expert witnesses: his expert on liability, and his primary care physician, life care expert, lost earnings expert, speech therapist, vocational rehabilitation expert, and neurologist.”

As to this, the court noted:

[W]e 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. While the CPLR does not contain any time limitations applicable to in limine motions, and there are no rules about their content, there are circumstances when their use is improper. Here, although defendants’ motions were intended to be, and turned out to be, dispositive, the means by which they were presented to the court reflects an intentional avoidance of the strictures of the CPLR’s notice provisions for motions. In effect, defendants’ strategic decision created something akin to an ambush.

The dissent’s implication that the ambush was plaintiff’s own fault, for advancing a novel theory on the eve of trial, distorts the facts. It was defendants’ belated, eve-of-trial motion that caused plaintiff to buttress his theory, which defendants then challenged as a new theory first offered on the eve of trial. Trial courts should take care that the informal procedure of in limine evidentiary applications is not abused so as to unfairly tip the scales.