Summary
finding that a biomechanical engineer's “stated education, background, experience, and areas of specialty, rendered him able to testify as to the mechanics of injury”
Summary of this case from Perrone v. Catamount Ski Resort, LLCOpinion
2014-03-13
Ana M. VARGAS, et al., Plaintiffs–Appellants, v. Akin SABRI, Defendant–Respondent.
Brand Brand Nomberg & Rosenbaum, LLP, New York (Brett J. Nomberg of counsel), for appellants. Bleakley Platt & Schmidt, LLP, White Plains (John A. Risi of counsel), for respondent.
Brand Brand Nomberg & Rosenbaum, LLP, New York (Brett J. Nomberg of counsel), for appellants. Bleakley Platt & Schmidt, LLP, White Plains (John A. Risi of counsel), for respondent.
Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered October 1, 2013, which denied plaintiffs' motion for a Frye hearing, unanimously affirmed, without costs.
The court did not improvidently exercise its discretion in denying plaintiffs' request for a Frye hearing ( Frye v. United States, 293 F. 1013 [D.C.Cir.1923] ) to determine the admissibility of the anticipated testimony of Dr. McRae, a biomechanical engineer. The fact that Dr. McRae lacked medical training did not render him unqualified to render an opinion as an expert that the force of the subject motor vehicle accident could not have caused the injuries allegedly sustained ( see e.g. Melo v. Morm Mgt. Co., 93 A.D.3d 499, 499–500, 940 N.Y.S.2d 83 [1st Dept.2012] ). McRae's stated education, background, experience, and areas of specialty, rendered him able him to testify as to the mechanics of injury ( see Colarossi v. C.R. Bard, Inc., 113 A.D.3d 407, 978 N.Y.S.2d 148 [1st Dept.2014] ).
Plaintiffs' challenge to Dr. McRae's qualifications and the fact that his opinion conflicted with that of defendant's orthopedic expert go to the weight and not the admissibility of his testimony ( see Williams v. Halpern, 25 A.D.3d 467, 468, 808 N.Y.S.2d 68 [1st Dept.2006] ). Plaintiffs' challenge to the basis for Dr. McRae's opinion addressed only portions of the evidence relied upon by him. Furthermore, the record shows that plaintiffs improperly attempted to put defendant to his proof by asserting, in the moving papers, that “defendant has not shown that the hearsay ‘studies' Mr. McRae relies upon are reliable,” without identifying any of the studies referred to or explaining the basis for the belief that the studies were not reliable. ACOSTA, J.P., RENWICK, FEINMAN, CLARK, JJ., concur.