Plaintiffs Christopher Garner, an infant by his mother and natural Guardian Sonia Garner, and Sonia Garner, individually, move to preclude portions of the proposed testimony of Dr. Robert Fijian which are not generally accepted as reliable in the scientific community or for a Frye hearing. (Frye v United States, 293 F 1013 [DC Cir 1923]). Defendants Trans & Limo, Inc. and Yakov Kogut oppose plaintiff's motion seeking preclusion of Dr. Fijan's testimony on the basis that the proposed testimony is based on generally accepted methodologies and procedures in the area of biomechanical engineering and is therefore admissible under the Frye standard. (Id). Defendant William Baird joins in co-defendants' opposition.

Plaintiffs have met their burden of making a prima facie showing sufficient to challenge [*2]the testimony of the proposed expert. The burden thus shifts to defendants to show by a fair preponderance of the credible evidence that the witness is competent in his field of expertise, that the testimony is based upon scientific principles generally accepted and that the matter about which the witness testifies is beyond the expertise of the jury and relevant to the issues in the case. (Id; Zito v Zabarsky, 28 AD3d 42 [2d Dept 2006]).

A Frye Hearing was conducted to determine whether the scientific methods used by Dr. Fijan to reach his conclusion that the force generated in the accident was not sufficient to cause the type of injury alleged to have been sustained by plaintiff Christopher Garner's left knee and whether those methods are scientifically reliable.

According to defendants' expert exchange made pursuant to CPLR 3101(d), Robert S. Fijan, Ph.D., is an expert in accident reconstruction, photoglammetry, biomechanical analysis and computer animation. Dr. Fijan obtained his B.S.E. in Engineering Science from the University of Florida, Gainsville and obtained his M.S. in Mechanical Engineering and in 1990 obtained his Ph.D. in mechanical engineering, both from Massachusetts Institute of Technology. He served as an assistant professor in the Department of Mechanical Engineering and Applied Mechanics at the University of Michigan from 1990 to 1994.

The Court heard the testimony of Dr. Robert Fijan, a self-employed biomechanical engineer. Dr. Fijan defined biomechanical engineering as the application of physics and mechanical engineering to the human body. He testified that he has no medical training but that through his training, he is able to review structural injuries to the human body. According to the witness, in the last forty years, the field of accident reconstruction is well accepted in the field of engineering through articles in scientific journals. Dr. Fijan testified that he relies upon other sciences and utilizes the general application of basic principles of physics and mechanical engineering and applies them to the human body.

While testifying, Dr. Fijan referred to his expert's report. Plaintiffs objected on the ground that defendants had not provided plaintiffs with the report. Defendants correctly noted that they were not required to provide any more than a CPLR 3101(d) expert exchange, which they did do, as the requirement that an expert's report be exchanged only applies to medical reports. (Uniform Rules for the Trial Courts [22NYCRR] § 208.13). As the report had not been exchanged or provided to the Court it was not admitted into evidence and Dr. Fijan was not permitted to read from it.

Dr. Fijan testified that based on his calculations of force, the impact to plaintiff's vehicle could not have caused the claimed meniscus tear in plaintiff Christopher Garner's knee. Dr. Fijan stated that the methodology he employed in reaching his conclusion that the physical forces between the two cars were not capable of causing plaintiff's injury has been accepted for decades in the relevant scientific community. The witness stated that the results of his calculations showed that the maximum force on plaintiff's knee was 500 lbs compared to the force generated while walking which is 1000 lbs. Dr. Fijan testified he used vehicle stiffness parameters from the [*3]results of publicly available crash tests, such as those performed by the National Highway and Traffic Safety Administration. Dr. Fijan referred to one textbook, "Basic Orthopedic Biomechanics" but did not provide its authorship and he mentioned a few other articles and their authors but gave no context for those sources and could not say whether they dealt with biomechanics and a torn meniscus.

It is well settled that the proponent of scientific evidence must establish that the theory and method used by a particular witness is generally accepted in the scientific community. (Frye v United States, 54 App DC 46, 293 F 1013 [DC Cir 1923]). New York courts permit expert testimony based on scientific principles or procedures only after the principle, procedure or theory has gained general acceptance in the relevant scientific field. (People v Wesley, 83 NY2d 417, 422 [1994]; Frye v United States, supra at 1014). A Frye inquiry poses the elemental question of "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally" (People v Wesley, 83 NY2d at 422). Frye "emphasizes 'counting scientists' votes, rather than on verifying the soundness of a scientific conclusion.' " (Wesley, 83 NY2d at 439; see also Parker v Mobil Oil Corp., 7 NY3d 434, 446-447 [2006]). "[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." (Frye v United States, supra at 1014). "[T]he particular procedure need not be 'unanimously indorsed' by the scientific community but must be 'generally acceptable as reliable.'"(People v Wesley, 83 NY2d at 423, quoting People v Middleton, 54 NY2d 42, 49 [1981]). "[B]ecause a witness qualifies as an expert with respect to certain matters or areas of knowledge, it by no means follows that he or she is qualified to express expert opinions as to other fields." (Nimely v City of New York, 414 F3d 381, 399 n 13 [2d Cir 2005]).

Defendants have failed to meet their burden of demonstrating that Dr. Fijan's proposed testimony is based on generally accepted methodologies and procedures in the area of biomechanical engineering and that their expert's theory of causation is generally accepted in the scientific community. While Dr. Fijan stated several times that the methodologies he used are generally accepted and have been used for decades, these conclusory statements were not supported by evidence such as peer review reports or other scientific studies. Dr. Fijan stated that he had a CD available with all the sources he used to form his opinion and he also stated that the documents he relied upon were contained in his expert's report, but neither was before the Court. There was no support given for the methodology of using repair costs and photocopies of photographs to determine the velocity of the vehicles and calculate the force of impact.

Dr. Fijan is not a medical doctor and he failed to cite any studies to support his conclusion that a passenger in the back seat of a vehicle, whose knee hits the car door at the moment of the collision, could not have suffered a torn meniscus. Therefore, Dr. Fijan's opinion that the accident did not cause or contribute to plaintiff Christopher Garner's knee injury is based upon unreliable methodology and lacks sufficient foundation. [*4]

Accordingly, based on the testimony adduced at the hearing, plaintiffs' motion to preclude the testimony of Robert S. Fijan, Ph.D. is granted.

This constitutes the decision and order of the Court.

Dated: June 7, 2010_____________________________

CHARLES S. LOPRESTO, J.S.C.

Justice, Supreme Court