On Dec. 5, 2018, a unanimous panel of the Appellate Division, Second Department issued its decision in Shah v. Mo. M. Rahman, 2018 N.Y. Slip Op 08342, upholding the trial court’s ruling (Justice Marc Partnow) not to grant plaintiff’s counsel’s application to hold a Frye hearing before admitting into evidence the testimony of a defense biomechanical engineering expert. In so doing, the court, citing, well established Court of Appeals authority (discussed below), has arguably dealt the biomechanical Frye hearing its final death blow.

Briefly, New York’s Frye standard (on the admission of expert testimony) stems from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), where the court held that expert testimony must be based on scientific methods that are sufficiently established and accepted in the relevant scientific community. (Note: New York continues to reject the standard used in the majority of state jurisdictions and the one used in federal court based on Daubert v. Merrill Dow Pharmaceuticals, 500 U.S. 579 (1993)).

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