What happens when an expert's opinion is based on a generally accepted methodology but his or her conclusion using that methodology is not generally accepted?
The Appellate Division, First Department in Marso v. Novak answered the question, holding that a ""methodology-only, ignore-the-conclusion" approach circumvents the Frye analysis. Marso involves a medical malpractice case where the plaintiff's expert witness on causation at trial, testified that all other possibilities for causation of the stroke were excluded by testing. He admitted, however, that it is not generally accepted in the scientific community that bradycardia is a risk factor for the type of embolic stroke suffered by the plaintiff.
On appeal from the trial court granting the defendant's motion for judgment notwithstanding the verdict, the plaintiff claimed that the theory does not implicate Frye because it resulted from the generally accepted methodology of "differential diagnosis," which is essentially a process of elimination by diagnostice testing. The Court rejected the proposition that analyzing an issue pursuant to the generally accepted "differential diagnosis" led to admissible expert conclusions.
This is a short opinion that is worth a read. I find New York's continual embrace of Frye frustrating in practice; I am more a Daubert guy. Nevertheless, within the Frye framework, this holding is logically sound.
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