We’re in New York this week for a legal conference that is always a good time. But, truth be told (and we are officers of the court, after all), several years ago we attended a conference sponsored by plaintiff lawyers and it was in every way a delightful affair. The judges did more than show up on one perfunctory panel. Rather, the plaintiff lawyers put the judges to work, installing them on panel after panel. Consequently, the audience was treated to more than the usual judicial bromides about how parties ought to work things out among themselves, etc. Further, the food at the plaintiff conference was superb. There was no rubber chicken in sight. Most important, the plaintiff lawyers tossed around way more wisecracks than we typically hear at any of the three-letter conferences. Our favorite plaintiff lawyer, upon learning that one of the token defense hacks on a panel had argued the Daubert case, said it was like meeting Ebola patient zero. Good times.
But is Daubert – er, sorry, we mean Rule 702 – really that much better for defendants than the former governing standard, Frye? General acceptance is a pretty serviceable standard. Taken seriously, that standard would trip up most of the junk science masquerading as a plaintiff’s causation theory. The recent opinion in Wholey v. Amgen Inc., 2024 WL 4885723 (N.Y. Supreme Ct. Nov. 26, 2024), makes us nostalgic for a muscular Frye test. Wholey shows that the old Frye standard can sometimes have real teeth. The Wholey opinion (which is on its way to publication) affirms summary judgment against a plaintiff who alleged that a drug she took to treat her rheumatoid arthritis had caused her to suffer from squamous cell cancer of the tongue. The case fell apart because her medical causation experts flunked New York’s Frye standard — which turns out to be more stringent than Fed. R. Evid. 702 (at least as that rule is applied by timid federal judges).
The plaintiff’s experts in Wholey admitted that “there were no clinical studies or medical literature to support their position.” The plaintiff experts “also failed to establish that their reliance upon an individual case occurrence, as well as FDA warnings and adverse case reports related to the use of [the drug at issue] amounted to an acceptable methodology of determining a causal connection.”
New York law had already established that “observational studies or case reports are not generally accepted in the scientific community on questions of causation.” The plaintiff’s experts in Wholey were reduced to proposing a “stepping stone” methodology that has never been allowed by any New York court. Thus, the trial court did not abuse its discretion in determining that the experts did not offer generally accepted opinions.
Goodbye, frail expert opinions. Goodbye, case. Sometimes there really is something wonderful, even wholesome, about a New York state of mind.