Frye Standard Alive Under New York State Law

on February 1, 2010 ·

Posted in Expert Issues

Last week, the New York Supreme Court dismissed a lawsuit brought against the McNeil unit of Johnson & Johnson alleging that normal dosage ingestion of Tylenol caused the Plaintiff to develop liver disease.  Much of the Court’s decision discussed the application of the Frye standard to Plaintiff’s expert witnesses and includes a detailed discussion of how this standard has been applied under New York law.  The Court held that the proffered testimony of Plaintiff’s four experts was inadmissible because the experts failed to rely upon scientific theories that are “generally accepted” within the scientific community.  This case, Ratner v. McNeil-PPC, Inc., is an interesting example of how the Frye standard remains alive in many New York state courts despite federal courts’ rejection of such standard in Daubert v. Merrell Dow Pharmaceuticals, Inc.‪‪

In applying the Frye “general acceptance” test, the Court drew a sharp distinction between studies showing that doses “greater than” the recommended daily dosage can be dangerous and those studies exploring consequences of “normal” dosages of acetaminophen (Tylenol’s principal ingredient).  According to the Court,  Plaintiff “wholly failed to introduce any studies, peer articles, professional literature, judicial opinions or recognized text books that state plaintiff’s simple yet novel premise, namely that normal ingestion of acetaminophen causes cirrhosis to develop in the liver.”  While the Court acknowledged that some studies revealing the dangers of over-dosage of acetaminophen have gained “general acceptance,” this was not true of studies involving normal doses of the ingredient.  Thus, Plaintiff failed to provide sufficient evidence of the causal connection upon which her claim depended.‪‪

The Court’s Order can be found at  http://newsroom.law360.com/articlefiles/145470-ratner%20mcneil.pdf.‪‪   

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