This case was assigned to my trial part on Friday, June 10, 2005, for a damages jury trial. Summary judgment on labor law liability had been previously granted to plaintiff.

The instant case arose out of an August 25, 1995-construction accident, in which plaintiff fell from the fourth to the third floors and landed on his face. According to the various bills of particulars plaintiff suffered numerous facial fractures, a broken nose, and dental injuries, which required surgeries to repair. In 2001 he was first hospitalized for psychiatric disorder. Defendants contend that plaintiff's psychiatric condition has no causal relationship to his construction site accident (motion in limine and June 7, 2005-affidavit attached of Dr. Alan Jacobs). Plaintiff, in his fifth supplemental bill of particulars, dated February 16, 2005, claims that his mental condition is a psychosis that was traumatically induced by brain injury from the [*2]August 25, 1995-accident.

At the June 10, 2005-pretrial conference, counsel for remaining defendants presented this Court and plaintiff's counsel with a written motion in limine, dated the previous day, to preclude plaintiffs' experts from testifying that plaintiff suffers from a psychosis caused by traumatic brain injury (TBI), rather than paranoid schizophrenia. The jury had been selected prior to the case being assigned to me for trial. Most of the motion in limine is an attempt to preclude Dr. Daryl Fujii, a Board certified neuropsychologist whose main area of expertise is psychotic disorder due to TBI, from testifying or having plaintiff use his February 17, 2005 deposition. Further, defendants move to preclude the testimony of plaintiff's experts: Dr. Morton Finkel, a neurologist; Dr. Daniel Kuhn, a neurologist and psychiatrist; and, Dr. Robert Lloyd Goldstein, a psychiatrist; with respect to offering any opinion testimony that plaintiff's present mental condition is a psychosis caused by TBI, on the grounds that their opinions are wholly speculative and not grounded in any of the medical evidence in the instant case, and therefore are not based on scientifically reliable methodology.

This Court is gravely concerned that defendants' counsel waited until the case was sent to trial to move to preclude any opinions expressed by plaintiff's experts about a psychosis induced by TBI. The Court hopes that this is not indicative of any propensity of defendants' counsel to engage in trial by ambush. Defendants' counsel has been on notice for months about the proposed testimony of Drs. Finkel, Kuhn, and Goldstein. Dr. Fujii's 195 page deposition was videotaped and transcribed almost four months ago. To serve this motion on the trial judge and opposing counsel, with a jury already picked, shows no respect for jurors who expect this case to go to immediate trial. If the Court decides to conduct a Frye hearing, this will inconvenience the jury. Out of my sense of duty to the jurors, which it appears that counsel for defendants severely lacks, I have spent the weekend of June 11 and 12, 2005 reading the moving papers and all exhibits, the pleadings, the deposition of Dr. Fujii, and relevant case law, so that this trial can commence after the rendering of this decision, on the morning of Monday, June 13, 2005.

Plaintiff's counsel objects to the timing of this motion, in his opposition papers, because it is subsequent to the jury selection and four months after Dr. Fujii's deposition. Other Courts, in recent decisions, have criticized lawyers for making Frye motions at the threshold of a trial. In Gallegos v Elite Model Mgt., 195 Misc 2d 223, 226 (Sup Ct, New York County 2003), the Court noted that:

the traditional approach in Frye hearing cases is to hold an in limine

hearing at the start of the trial or sometimes even during the trial. That

is a far less productive way of proceeding and is a waste of the jury's time

as it sits and waits while the hearing hurries along and the judge's equally

hurried decision is made without sufficient time to study and reflect.

In Drago v Tishman Construction Company of New York, 4 Misc 3d 354 (Sup Ct, New York County 2004), the Court, at 362, observed that, "In relation to the conduct of the civil litigation, there is an evolving preference for early presentation because scientific issues may involve a time-consuming analysis of an expert's methodology and the pertinent literature [citations omitted]." See Tavares v New York City Health and Hospitals Corporation, 2003 NY Slip Op 51278 (U) (Sup Ct, Kings County 2003); Clemente v Blumenberg, 183 Misc 2d 923 (Sup Ct, Richmond County 1999). [*3]

While defendants have not directly requested a Frye hearing, the issue of whether a psychosis can be caused by TBI must be addressed, whether by either granting testimony preclusion, conducting a Frye hearing, or denying the motion. New York courts have long recognized the standard in Frye v United States, 293 F. 1013, 1014 (D.C. Circuit 1923), that in admitting expert scientific testimony, "the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." In People v Wesley, 83 NY2d 417, 422 (1994), the Court of Appeals instructed that, "the test pursuant to Frye v. United States (293 F. 1013) poses the more elemental question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally."

Defendants' counsel claims that the only basis for Dr. Fujii's conclusions are the reports of plaintiff's experts and there is no reference to any brain injury from the 1995 accident in the treating records (page 3 of Memorandum of Law). Further, defendants' counsel claims on page 4 of the Memorandum of Law that "at no time does Fujii rely on any medical evidence," and that the other plaintiff's experts "simply refer to each other's reports to support their opinions."

These claims are a misstatement of the facts. Dr. Fujii, in his deposition, states his professional qualifications (pages 7-11). At pages 13-14 he explains how psychotic disorder due to TBI would come under the diagnosis of a psychotic disorder due to a general medical condition, namely TBI, according to DSM-4 (Diagnostic and Statistical Manual of Mental Disorders, 4th edition). DSM-4, which came out in 1994 and had a text revision in 2000, is the most widely used manual of this type in the United States. At page 28, Dr. Fujii testified that he reviewed the DSM-4 criteria for psychotic disorder due to TBI and schizophrenia, Mr. Guscott's medical and hospital records, and the relevant literature, before he reached his conclusions. In his report (Ex. J of Memorandum of Law) Dr. Fujii lists numerous medical and hospital records used to preliminarily conclude that the plaintiff's "history and presentation is very similar to descriptions of patients in the literature who develop psychosis after TBI in which there is generally a delayed onset of delusions and hallucinations as well as neuropsychological deficits." Plaintiff's three other experts, Drs. Finkel, Kuhn, and Goldstein, all examined plaintiff and reviewed his history and records (Ex. G of Memorandum of Law). Dr. Kuhn, in reaching his diagnosis of psychosis due to TBI, performed a neurometric brain mapping battery of tests, citing a paper published by the American Academy of Neurology in 1999, in support of this testing as valid. Despite the negative assertion of defendants' counsel that there is no reference in plaintiff's records to any medical evidence for brain injury, the psychiatric assessment for Kingsboro Psychiatric Center and Kingsboro's May 6, 2003 discharge summary (Exhibit G of Memorandum of Law) list for Axis III, "history of head trauma (5 years ago)."

Defendants' counsel further claim that Dr. Fujii's opinions are not scientifically reliable under Frye, and that Dr. Fujii's opinions are based upon hearsay. Any hearsay problems that Dr. Fujii's conclusions have with respect to the opinions of Drs. Finkel, Kuhn, and Goldstein can be avoided by plaintiff placing their reports into evidence and having these experts testify before reading Dr. Fujii's deposition into the record or having Dr. Fujii testify. Hambsch v New York City Transit Authority, 63 NY2d 723 (1984); Wagman v Bradhsaw, 292 AD2d 84 (2d Dept 2002). Counsel for defendants continually makes general statements that Dr. Fujii's opinions are not generally accepted. The only evidence defendants present to refute Dr. Fujii and the other [*4]experts is the affidavit of Dr. Jacobs, which also has general and conclusory statements. This lack of specific scientific evidence to refute the possibility of plaintiff suffering from psychosis due to TBI is a fatal flaw to defendants' motion in limine. The Court in Drago v Tishman Construction Company of New York, supra, noted, at 360, that:

in relation to a motion addressed to scientific evidence, movant should

support its motion in limine by reference to some scientific material of

evidentiary value, for a court cannot undertake an independent review

of scientific literature (George D. Marlow, From Black Robes to White

Lab Coats: The Ethical Implications of a Judge's Sua Sponte, Ex Parte

Acquisition of Social and Other Scientific Evidence During the Decison-

Making Process, 72 St. John's L Rev 291 [spring 1998]).

Defendants attempt to use the recent decision in Parker v Mobil Oil Corporation, 16 AD2d 648 (2d Dept 2005) to develop a three-part methodology that should be used by plaintiff's experts to utilize the opinion of a TBI induced psychosis. In Parker, a gas station attendant developed a form of leukemia and blamed it upon exposure for years to the gasoline additive benzene. The Parker Court found that plaintiff couldn't determine the level of his exposure to benzene, prove from a review of the literature that benzene caused his illness, and didn't establish the probability that benzene caused his illness. Therefore, applying Frye, plaintiff's expert testimony should be precluded. It is a stretch to apply Parker to the instant case. It appears that there is evidence of head trauma to plaintiff, the DSM-4 and other publications make reference to psychosis induced by TBI, and plaintiff's experts can attempt to establish the probability that the August 25, 1995-accident ultimately resulted in plaintiff's psychotic condition.

The Court of Appeals in Cassano v Hagstron, 5 NY2d 643, 646 (1959) instructed, "it

is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness." Plaintiff's experts must testify to medical records, after placed into evidence, or about their examinations of plaintiff. The same goes for defendants' experts. The jury is faced with a triable issue of fact as to whether plaintiff suffers from either a psychosis traumatically caused by a brain injury or paranoid schizophrenia.

Defendants' counsel has succeeded in limiting Dr. Fujii testimony in one respect. Dr. Fujii's report states that plaintiff meets all seven criteria of Dr. Cummings, to determine if he has a psychotic disorder with an organic etiology. At pages 155-156 of his deposition, Dr. Fujii states that Dr. Cummings' findings on psychosis from TBI are not generally accepted in the psychological/psychiatric scientific community. At page 159, Dr. Fujii states he would reach the same conclusions without any reference to Dr.Cummings' criteria. Therefore, if Dr. Fujii testifies, or his deposition is used, no reference will be made to Dr. Cummings' seven part criteria for psychosis from TBI. None of plaintiffs other experts may make any reference to Dr. Cummings' findings.

Defendants' motion in limine, to preclude plaintiffs' experts from testifying that plaintiff suffers from a psychosis caused by traumatic brain injury (TBI) rather than paranoid schizophrenia, is denied, except that none of plaintiff's experts may testify about or have their [*5]depositions used to present the seven criteria of Dr. Cummings with respect to the causation of psychosis from traumatic brain injury.

This is the decision and order of the Court.

__________________________________

HON. ARTHUR M. SCHACK

J. S. C.