[*1]

Defendant, CITY OF NEW YORK moves this court for an Order precluding Plaintiff from introducing evidence of neuropsychological testing done on Plaintiff by Dr. Yehuda Ben-Yishay an expert retained by Plaintiff. As part of that application Defendant requested [*2]that a Frye hearing be held to determine if the tests administered by Dr. Ben-Yishay are generally accepted in the relevant scientific community.

The Court conducted a Frye Hearing on March 12th ,13th , 23th, 24th, 2009, at which Dr. Ben-Yishay and Dr. Monica Rivera-Mindt, an expert retained by the City, testified.

Upon the motion to preclude of the CITY OF NEW YORK, the testimony adduced at the Frye hearing, as well as the exhibits introduced, and argument of counsel, and after due deliberation thereon, the motion to preclude is denied except to the extent indicated below.

The underlying action involves a boy alleged to have suffered traumatic brain injury after being struck on the head by a tree limb. Plaintiff retained Dr. Ben-Yishay, of NYU's Rusk Institute, to conduct neuropsychological testing on the Plaintiff and to testify as to traumatic brain injury the Plaintiff is alleged to have suffered. Dr. Ben-Yishay conducted a battery of approximately 18 tests on Plaintiff. Some of the tests were standardized tests, some were proprietary NYU tests and some were personalized specifically for the Plaintiff.

Defendant seeks to preclude all of the Dr. Ben-Yishay's testing claiming that the tests and the manner in which he conducted them are not generally accepted in the neuropsychological community. The Court granted a Frye hearing as to the NYU proprietary tests and the personalized tests but not as to the standardized tests.

Standardized Tests

To the extent Defendant has articulated the manner in which it believes Dr. Yishay's administration of the standardized tests did not comport with accepted standards, they argue that the use of these tests was invalid because Plaintiff has difficulties with the English language.

Dr. Rivera-Mindt, a neuropsychologist retained by the Defendant, testified that results on even non-verbal standardized tests can be effected by language difficulties. She testified that the scores on these tests can be effected even for native English speakers who are bilingual, and that one must provide a much more cautious interpretation of the findings of subjects whose native language is not English.

Dr. Rivera-Mindt testified that normative data is currently being developed for different language and cultural groups such as Hispanics, but that she was not aware of any normative data being developed to differentiate sub groupings among white ethnic groups.

Dr. Ben-Yishay testified that plaintiff speaks English, Hebrew and Yiddish but did note in his report that Plaintiff had some difficulty with English. Dr. Ben-Yishay also testified that he considered Plaintiff's language difficulties in administering the tests and that he ensured that the plaintiff understood his instructions. Plaintiff submitted in evidence his deposition in which he testified in English at length, without an interpreter.

However, any issues as to the reliability of administering standardized tests to persons with some difficulty with English is not a Frye issue. Such issues may go to the weight the tests scores are entitled to but not to whether standard tests, such as the WAIS III, the DAT and the Benton VRT are accepted in the neuropsychological community.

Defendants have cited cases that hold that the methods employed in producing the scientific evidence is a proper inquiry at a Frye hearing. However these cases, such as Zito [*3]v Zabarsky, 28 AD3d 42, 812 NYS2d 535 (2nd Dept. 2006), refer to whether there are standard methods for conducting a given test or analysis that are generally accepted.

Frye is not concerned with reliability of a particular expert's conclusions, but instead with whether the expert's deductions are based on principles that are sufficiently established to have gained general acceptance as reliable. Nonnon v City of New York, 32 AD3d 91, 819 NYS2d 705 affd. 9 NY3d 825, 842 NYS2d 756.

A claim that an expert did not properly conduct a recognized standard test is a matter for cross examination, not a Frye hearing. This is so even though such a claim attacks the validity of the result, because the objection is not to the acceptance of the test or methods, but to the manner in which they were actually performed.

Defendant's position is analogous to requiring an expert to justify the principles underlying a breathalyzer because a defendant asserts that the operator did not properly check the calibration of the breathalyzer before conducting the test.

In general any objection to the manner in which an accepted standardized test was administered is properly a matter for cross examination.

However, the results of the Controlled Oral Word Association Test (COWA ) and the Gates-McGinite Reading test should be precluded because Dr. Ben-Yishay stated in his report that "because of the reported lack of formal schooling in reading and writing of English it was impossible to reliably assess how much of the paucity of his vocabulary and his inadequately articulated thoughts are due to the effects of his brain injury." These two test were administered to assess Plaintiff's language and communication skills.

While these are standard tests and the effect of the language deficits is not a Frye issue, it is clear from Dr. Ben-Yishay's report that the results of these two tests would not aid the jurors in determinating the nature and extent of Plaintiff's injuries. The jury could only speculate to what extent the scores on these two test evidenced brain injury as opposed to educational deficits.

Additionally, Dr. Ben-Yishay testified that the NYU Telegram test, was another language based test for which he could not state to what extent the scores were the result of brain injury and to what extent they were the result of language deficits. For this reason the NYU Telegram test should also be precluded.

Pre Morbid IQ

Similarly, the City seeks to preclude Dr. Ben-Yishay's use of a pre-morbid IQ equation to estimate of Plaintiff's IQ before the accident. Dr. Rivera-Mindt testified that the equation used was valid and accepted in the field, but that calculation itself was in error because Dr. Yishay used an incorrect regression weight as the coefficient of the age variable in the equation. Whether the age regression weight used was correct or not is not a Frye issue but a matter for cross examination for trial.

NYU Proprietary Tests

In addition to the standardized tests, Dr. Ben-Yishay administered several tests developed at NYU that were described as refinements or tweaking of accepted standardized tests. According to Dr. Ben-Yishay the purpose of developing specialized [*4]versions of the standardized tests is to be able to test for specific functions the standard test are not discriminate enough to do. He also testified that developing specialized versions of standard tests is an accepted practice in the field.

The practice of development of specialized tests is acknowledged in the textbook "Handbook of Normative Data for Neuropsychological Assessment" offered into evidence by Defendant. It states on page 9:

"Of course, experimental measures are occasionally used during the course of an evaluation. This is tolerated by our field because experimental test development is a natural evolution in a discipline that advocates and uses research to advance knowledge about clinical assessment and diagnosis. However, findings from experimental tests should be used only to supplement and support findings from standardized procedures that were also administered. Findings should never be used as the primary basis for forming opinions about impaired neuropsychological functioning."

Dr. Ben-Yishay used a combination of NYU propriety tests in conjunction with accepted standardized tests in evaluating Plaintiff. Dr. Ben-Yishay testified that he employed the various specialized tests to confirm the results obtained on the standardized tests or to test a more specific area of functioning for which the standardized test did not assess.

NYU Hierarchy of Purdue Pegboard Test

Dr. Ben-Yishay administered a finger dexterity testing procedure to rule out the possibility that the Plaintiff was dissimulating or exaggerating his difficulties. This procedure was an extension of the Purdue Pegboard Test which was developed at Purdue University in the 1940's. NYU created a hierarchy of the component tasks of the Purdue test. Then the various components were administered three consecutive times. Instead of administering the components in the same order, from simple to complex, the order of the components was changed randomly each time. The underlying principle is that by varying the order, a person attempting to fake a disability would not know which of the component one would be expected to score higher or lower on. The three scores for each component were averaged and compared with an expected order of magnitude for each component. A significant deviation from the expected magnitude of order would be considered evidence of dissimulation.

The NYU hierarchy was not used alone to rule out dissimulation, but was used in conjunction with the Rey 15 item test, a standard visual memory test.

Dr. Ben-Yishay testified that NYU developed the norms for the expected order of magnitudes from a test group of approximately 100 persons from three general socio- economic groupings. He further testified that the NYU version of the test as well as the development of the norms were peer reviewed. He stated that they were peer reviewed by that National Institute of Health (NIH) when NYU sought funding for the development of the tests. The NIH assembled a group of outside scientists in the field to review the proposal and issue comments and questions, which were responded to by NYU. Dr. Ben-Yishay states that implicit in NIH's decision to fund the project is an acceptance of the underlying [*5]principles and methodologies. Dr. Rivera-Mindt stated that a decision by NIH to fund is only a recognition that the hypothesis presented is worth testing.

Dr. Ben-Yishay countered that NYU submitted on going reports and received continued NIH funding for the project and submitted a final report of the project which was peer reviewed by the NIH. Dr. Ben-Yishay also testified that the NYU test is used by practitioners in several countries in Europe and in South Africa.

Dr. Ben-Yishay also cited a monograph published by NYU in 1978 entitled "Working Approaches to Remediation of Cognitive Deficits in Brain Damaged Persons." in which the NYU Purdue Pegboard Hierarchy was discussed. Dr. Rivera-Mindt was unfamiliar with the monograph but contested whether it was peer reviewed. Dr. Ben-Yishay testified that it was peer reviewed by NYU before publication and that was it was published and available to the relevant community, and was subject to further peer review and comment.

The monograph devotes a chapter to the NYU Hierarchies and discussed how the test is performed and evaluated. It also discusses in detail the test population that was used to develop the normative data.

Dr. Ben-Yishay's use of the pegboard test to evaluate manual dexterity in brain damaged patients was cited in the textbook "Neuropsychological Assessment" by Lezak, Howieson and Loring. This textbook was recognized as authoritative by Dr. Rivera-Mindt., although she contended that the text did not explicitly accept the manner in which NYU developed the norms for its hierarchy.

It is reasonable to infer from the fact that Dr. Ben-Yishay's development of the Pegboard Hierarchies was included in the text without criticism or qualification, that the authors of the text accepted it as reliable.

Dr. Rivera-Mindt also stated that the test groups cited in the Lezak text do not take language into account, and the normal groups assumed native English speakers from the dominant culture. She pointed out that even though it is not language based, Hispanics do not do as well on the pegboard test. She testified however that she was unaware of any specific norms being developed for the pegboard test to account for differences among white ethnic groups.

The Plaintiff has established that the NYU hierarchy developed from the standard Purdue Pegboard test, has been peer reviewed and is a generally accepted test in the neuropsychological community.

Orientation Remedial Module

Dr. Ben-Yishay used the Orientation Remedial Module (ORM) developed by NYU to test Plaintiff's basic attentional functions. The ORM is a five test computerized hierarchy that measures three components of basic attention functioning and assesses whether a patient can benefit from remedial training.

Dr. Rivera-Mindt stated that the ORM is not a test to measure attention function but an intervention to remediate the effects or brain injury on attention function.

The ORM provides a series of computerized exercises that are designed to reinforce attentive behavior, such as the ability to be alert to changes in the visual environment, produce simple motor responses to such changes, visually track stationary and moving targets and use feedback to modify responses.

Dr. Ben-Yishay testified that the ORM is used both to remediate and also to assess [*6]or measure attentional functions. He explained that one uses the ORM first to establish a baseline of attention functioning for diagnostic purposes. A patient is also assessed at the end of the administration of the ORM. The final assessment is compared to the baseline to determine whether the functioning was improved and whether the patient would benefit from further remediation.

The ORM was cited in two peer reviewed articles that were put into evidence. The first was an article by Alice Medalia and others in the Schizophrenia Bulletin, Vol. 24 No.1 1998. The article discussed studies in the use of the ORM to treat patients with schizophrenia. The article cited Dr. Ben-Yishay's development of the ORM and stated that it has been reported to have provided successful remediation in patients with brain injury.The second peer reviewed article presented was "Outcome of Different Treatment Mixes in a Multidimensional Neuropsychological Rehabilitation Programs" by Jack Rattok Dr. Ben-Yishay and others, in Neuropsychology Vol. 6, No. 4 1992. That article discussed a study done to evaluate the effectiveness of various remedial interventions in terms of four outcome measures. In the study the ORM was used to rate the subjects both at baseline and after cessation of the remedial training period. Id. pp.399-400. Thus in this study the ORM was used not only as an intervention but also as an assessment or measurement test. Though the article did not explicitly state that the authors accepted the ORM as reliable, the fact that they used it in their study evidences that they did so.

Dr. Ben-Yishay also testified that the methodology of the ORM was published in an NYU monograph entitled "A Modular Approach to Training in Cognitive-Perceptual Integration" (1978).

Significantly, Dr. Ben-Yishay also testified that NYU has sold hundreds of copies of its computerized ORM version of the test together with the norms used in assessing the patients scores on the tests.

Plaintiff has demonstrated that the ORM is both widely accepted and used in the neuropsychiatric community. Inherent in the use of the ORM as an intervention, is the acceptance as reliable, of the baseline and post remedial assessments it provides, without which one could not judge whether the intervention resulted in any improvement.

NYU Letter Cancellation Tests

These single target and double target cancellation tests were developed by Dr. Ben-Yishay to test visual perception. Cancellation tests are a generally accepted method for assessing visual inattention. They consist of printed horizontal rows of symbols, pictures numbers or letters. The patient is then asked to cross out a designated target, that is a specific symbol, letter, or number, each time it appears.

In the single cancellation version the patient is asked to cross out a single target. In the double cancellation test the patient is asked to cross out two targets, for example every "c" and "e". The NYU test itself does not differ from standard linear cancellation tests but NYU developed their own normative database. Dr. Ben-Yishay testified that he developed the norms based a sample of a couple of hundred persons.

Dr. Ben-Yishay's letter cancellation test are discussed in Lezak's Neuropsychological Assessment at page 381. While the textbook does not explicitly state that the authors accept the tests as reliable, it is clear from their inclusion in the text with [*7]no criticism or qualification, that the authors did believe them to be reliable.

NYU LAVA test

The Lava test is a scanning test that like the letter cancellation test assesses visual perception. It was developed by a PhD candidate as part of his dissertation. It is made up of two tests in which a patient is asked to a compare a figure with other figures, one of which is the same and the remainder vary in minor details. The patient must identify the match and the test is untimed. The first of the two tests given to Plaintiff consisted of familiar figures such as cars and the second test consisted of unfamiliar blob like figures.

Dr. Ben-Yishay testified that normal subjects are able to correct identify the matching pair both with familiar objects and unfamiliar objects. He stated that persons with aphasia or difficulties in reasoning can correctly match the familiar figures but are more likely to make mistakes with the unfamiliar figures.

Dr. Ben-Yishay testified that the tests and their methodology was peer reviewed as part of the dissertation process. He stated that the dissertation was published and it is available at the university where the degree was granted and that the data concerning the development of the test and normative data is published as part of the dissertation . Dr. Ben-Yishay further testified that practitioners in the field would not contest the principles underlying the test, the only issue would be whether a practitioner would use a different test to best identify a particular problem. Dr. Rivera-Mindt was not familiar with the test.

Dr. Ben-Yishay testified that the LAVA test was similar to the Raven Progressive Matrices Test which is a standardized test for visual perception. Dr. Ben-Yishay used the LAVA test and the letter cancellation test in conjunction with standard tests such as the Raven Progressive Matrices, the Benton VRT, the Rey Complex Figure Test and the WAIS III block design. He testified that he uses the LAVA test to provide a "clue differentially" to explain in more detail problems revealed in the other standard visual perception tests.

Language and Communication Skills

Dr. Ben-Yishay administered two standardized tests to assess Plaintiff's language and communication skills, the Controlled Oral Word Association test (COWA), and the Gates-McGinite Reading Test. As discussed above, the results of these tests should be precluded even though they are standardized tests because Dr. Ben-Yishay stated in his report that he could not determine to what extent Plaintiff's scores on these tests were the result of his injury or were the result of his English limitations.

In addition to these two tests, Dr. Ben-Yishay had Plaintiff produce a writing sample in what he characterized as an informal procedure. He did not score the writing sample against a set of standardized norms but used it to make a qualitative assessment as to the types of problems with written language the Plaintiff exhibited such as spelling, syntax, or sentence completion. Dr. Ben-Yishay testified that use writing samples are a standard procedure in the field for making qualitative assessments. While use of a writing sample may be an accepted methodology, in this case it suffers from the same problem as the COWA and Gates-McGinite tests. Dr. Ben-Yishay could not say to what extent the writing difficulties were the result of the accident. The evaluation of the writing sample would not aid the jury, but would force them to speculate to what extent the writing deficiencies were the result of the injury. [*8]

Personalized Memory Tests

Dr. Ben-Yishay administered six tests to assess Plaintiff's memory functions. Four of the tests, the WAIS III, Benton VRT, Rey Complex Figure Test, and the California Verbal Learning Test are recognized standardized tests. Two of the tests, the Personalized Biblical Quiz and the Personalized Prospective Memory Test were designed specifically for the Plaintiff.

The Personalized Biblical Test consisted of 50 questions based on the stories of the Bible. Dr. Ben-Yishay stated that he designed this test to confirm the poor results that Plaintiff had on the standardized memory tests. He explained that since Plaintiff studied at a Yeshiva where students are taught by memorizing parts of the Bible, he would be expected to know the answers to the questions. Dr. Ben-Yishay wanted to see if Plaintiff's ability to recall Biblical stories differed from his memory functioning on the standardized memory tests.

Similarly the personalized prospective memory test was designed to see if Plaintiff could recall information that he is known to possess. In this case Plaintiff was asked how to go from Dr. Ben-Yishay's office to Grand Central Station. Dr. Ben-Yishay testified that Plaintiff knew this information because he traveled from the Doctor's office to Grand Central Station to return to his home in Brooklyn.

Dr. Ben-Yishay testified that the Bible test assessed his past memory and that the prospective memory test assessed how he would remember something he had to do in the future, such as going home from the Doctor's office. Dr. Rivera-Mindt testified that she did not consider the test as described to be a prospective memory test, which she defined as a test of whether one could remember to remember. An example she gave was if plaintiff was asked to call the doctor at 8 that evening and in fact did so. The significance of this distinction is not readily apparent, nor is it particularly relevant to the Frye issues herein.

Dr. Ben-Yishay testified that it is an accepted practice in the field to use personalized tests to confirm the results of standardized tests to see if someone is impaired in all aspects, that it is something that good clinicians do. Dr. Rivera-Mindt did admit that it is acceptable in the neuropsychological community to personalize a test for the purpose of getting descriptive or qualitative information provided that it is done a part of a battery of standardized tests.

Here Dr. Ben-Yishay used the two personalized memory tests to confirm the results of the four standardized memory tests he administered . This is in line with the Handbook of Normative Data for Neuropsychological Assessment quoted above, which states that non-standardized measures may be used to supplement or support standardized test results, provided that they are not the primary basis for assessment. Since Dr. Ben-Yishay's use of these tests in evaluating the Plaintiff is consistent with this accepted methodology they should not be precluded.

Personalized Pictorial Similarities Test

This test is a non-verbalized variant of a part of the Wechsler Adult Intelligence Scales where a subject is asked to describe how two objects are alike to assess their ability to identify logical categories. The Plaintiff was shown eight pairs of objects and given [*9]multiple choice questions as to various categories that could describe the pairs. Dr. Ben-Yishay testified that other practitioners have developed similar pictorial similarities tests. The purpose of the pictorial variant is to find out if a person can think logically even if they can not speak logically.

The objection raised by Dr. Rivera-Mindt was that the test was not a standardized test, that it was not scored against standard norms. Dr. Ben-Yishay admitted that it was scored not against norms but against an expected number of correct answers. The expected number was set By Dr. Ben-Yishay based, not on a sample of normal subjects, but on his experience.

The fact that it is a personalized test rather than a standardized test is not by itself a reason to preclude it where, as here, it is used to supplement standardized tests.

Lezak, in "Handbook of Normative Data for Neuropsychological Assessment" also discusses the use of batteries of tests made up of both standardized tests and individualized tests and states on page 686:

"Many batteries contain tests brought together to meet their creators' (or compilers') criteria for an effective neuropsychological examination. They typically consist of both published tests that can be purchased and some developed for the batteries. Unlike the big commercially available batteries, no large scale standardization studies have been undertaken; rather, examiners can use the standardization and normative data developed for the individual tests."

In assessing Plaintiff's higher level cognitive functioning, Dr. Ben-Yishay administered the WAIS III and the Differential Aptitude Test (DAT) as well as the pictorial similarities test. He testified that he used the pictorial test to pin down more specifically the reasoning difficulty that caused the Plaintiff to score so poorly on the standardized tests. In this case, whether the issue was a deficit in logical speaking or in logical thinking. His assessment though a qualitative one, is still based on accepted principles and methodology since it was used to supplement through further discrimination, the standardized tests.

NYU Object Sorting Test

THE NYU Object Sorting test is a variation of the standard Goldstein/Shearer Object Sorting Test. Object sorting tests are used to test abstraction and concept formation. In the Goldstein/Shearer test the subject is asked to group familiar objects presented to him or her. Since the test was developed in the 1940's many variations on the test have been developed and used.

In the NYU variation the subject is given 12 objects and first asked to sort them into four groups of three of his or her own choosing. Then subject is then asked to explain the basis for the groupings. Third, the subject is then asked to re-sort the objects into different groupings. Dr. Ben Yishay testified that the purpose of the third step of the NYU variation is to assess mental flexibility.

Dr. Rivera-Mindt testified that she would not use an object sorting test to assess higher mental functions but would use the Wisconsin card sorting test instead. In the [*10]Wisconsin card sorting test the subject is presented with a series of card with various symbols, rather than objects. The subject is asked to sort the cards by placing the cards next to stimulus cards each of which has a different color, shape and number of symbols. The subject can sort based of the color of the symbols on the stimulus cards, the shape of the symbols on the stimulus cards or the number of symbols on the stimulus cards.

The Goldman/Shearer test and variations of the test are discussed in the Lezak text (p 585). The text states that the variations often include asking for verbal explanations which allow the examiner more flexibility in conducting the test and observing the subject's conceptual approach and that most examiners focus on the qualitative aspects of the patient's performance.

Dr. Ben-Yishay testified that the original Goldstein /Shearer test did not score subjects based on norms but merely described the subject as either "abstract" or "concrete" based on their responses. He further testified that the NYU test is not scored against norms either but against an expected score. The expected score was developed based on the experience of the NYU examiners.

The NYU Object Sorting Test is based on the same principles as the Goldstein/Shearer test and the same methodologies as the variations of the test cited in the Lezak text. The object sorting test and its variations provide qualitative assessments rather than normed scores. Any disagreement concerning the expected scores developed by NYU for its variation, go to the weight to be given to the characterization of the degree of impairment the score demonstrated, rather than to the general acceptance of the test.

Written Categorical Reasoning and NYU Verbal Similarities Tests

It appears from Dr. Ben-Yishay's testimony that these two tests were given to test Plaintiff's logical reasoning in lieu of standardized tests because of Plaintiff's difficulties with expression. Dr. Ben-Yishay did not provide any details about how these tests were developed or their underlying principles or methodology. He did not offer any evidence regarding their acceptance in the neuropsychological community. As Plaintiff has failed to demonstrate that the principles and methodologies of these tests are generally accepted, they should be precluded.

NYU The Tower of Hanoi Test

Plaintiff was administered an NYU developed version of the Tower of Hanoi Test. The Tower of Hanoi is a recognized standard test to assess spatial-motor planning. In the test the subject is presented with rings of varying size stacked on one of three pegs with the largest on the bottom and the smallest on the top. The subject is told to move the rings from the first to the third peg in as few moves as possible. The subject is told that they can move only one ring per move and they can not place a larger disc on top of a smaller disc.

The Tower of Hanoi test is discussed in Lezak, (pp 618-619) which states that multiple forms of the test are used. In some versions the number of rings is varied which changes the number of minimum moves needed for completion.

The NYU version of the test used four various sized discs instead of rings and the discs were moved between three circles rather than three pegs. The rules of the NYU version of the test are the same. The subject is allowed to move only one disc per move and may not place a larger disc on top of a smaller disc. The test is untimed and is scored by the number of moves it takes the subject to complete the test and how many violations of the rules the subject commits. The minimum number of moves for the NYU test was the [*11]same as for the standard version of the test with four rings, 15 moves.

The NYU test was administered to Plaintiff twice. Plaintiff required 38 moves rather than 15 to complete the test in his first attempt and took 33 moves in the second attempt. Plaintiff committed no violations of the rules on either attempt.

The difference in the NYU version, aside from the use of discs and circles, in place of rings and pegs, is that the discs are given numbers and the circles are given letters. According to Dr. Ben Yishay the purpose is to allow the examiner to record each specific move. For example if the subject moves disc 1 to space B the move is recorded as 1B. This allows for a detailed record of all of the moves made by the subject which can be reproduced at a later date. The numbering and lettering however does not change the manner in which the test is performed.

The NYU version has no significant differences from the standard version of the Hanoi Tower test, which is widely accepted in the neuropsychological community. The fact that each element is given a identifying number or letter does not change the principles or methodology of the test it simply allows a more detailed history of each move to be recorded.

The NYU Prioritization Test

This test is designed to assess a subject's prioritizing functioning, which is a subfunction of executive functioning. The subject is a given a list of ten "chores" or ten actions that make up a sequence. The chores or actions are listed in a random order and the subject is asked to put them in a logical sequence. The NYU test consists of four sets of ten, two of which are easy to prioritize and two of which are more ambiguous or more difficult to prioritize. Dr. Ben-Yishay testified that the test and the norms were developed by NYU using the same methodology for developing normative data as was used with their other proprietary tests. As with the Personalized Pictorial Similarities test, this test was given a part of a battery of tests to assess Plaintiff's higher level reasoning functions. Standard tests such as the WAIS III, and the DAT were given as part of the battery. As discussed above, the use of clinically developed non-standardized tests as part of a battery of standardized tests is an accepted and recognized methodology in the neuropsychiatric community. While the results of the non-standardized tests are viewed more cautiously and can not form the primary basis for assessment they are acceptable to supplement, the standardized tests.

Conclusion

Plaintiff did provide convincing evidence that the NYU tests met the requirements of Frye, except to the extent previously indicated.

As stated above, the COWA Test , the Gates-McGinite Test, the Writing Sample and the NYU Telegram Test should be precluded, however, not on Frye grounds. Dr. Ben-Yishay admitted that he could not say to what extent the results of those tests reflected Plaintiff's language limitations or to what extent they reflected his injury. Therefore the results of those test would not aid the jury, but would only lead the jury to speculate as to what extent they reflected Plaintiff's injury.

The Written Categorical Reasoning Test and NYU Verbal Similarities Test should be precluded because Plaintiff did not provide evidence as to the manner in which these [*12]tests were developed, or whether the principles and methodologies underlying these tests were generally accepted in the relevant community .

Plaintiff demonstrated that the NYU versions of the Pegboard and ORM were generally accepted in the neuropsychological community. As discussed more fully above, they were cited in peer reviewed articles, monographs and the Lezak textbook. It was also clear from the testimony that the ORM is both an intervention and an assessment tool. Initial baseline and final assessments of the subject's basic attentional functions are an integral part of the ORM.

It was not contested that the equation used by Dr. Ben-Yishay to determine Plaintiff's pre-morbid IQ was accepted in the relevant community for that purpose. Dr. Rivera-Mindt only disagreed with Dr. Ben-Yishay's result, based on the regression weight for the coefficient of the age variable he had used.

Plaintiff demonstrated that the Letter Cancellation Tests, the Tower of Hanoi Test and the NYU Object Sorting Test were all almost identical in principal and methodology to the standard versions of these well accepted tests. The NYU versions of these tests did not differ significantly from the standard versions as they were described in Lezak's, "Neuropsychological Assessments" and did not deviate from the underlying principals and methodologies of the standard versions.

The fact that NYU developed specific norms for its versions does not make them unreliable. Dr. Ben-Yishay testified that NYU developed the norms using standard methodologies and sample sizes of at least eighty to a hundred subjects. Dr. Ben-Yishay testified that the norms and the methods by which they were developed, were peer reviewed through the National Institute of Health grant process.

Similarly, the NYU Priorities TEST and the LAVA Test were used by Dr. Ben-Yishay to supplement the standardized tests given to Plaintiff. The norms for these tests were peer reviewed both through the NIH grant process and the dissertation process, in the case of the LAVA Test .

The lack of literature discussing the specific norms developed for these NYU tests does not render them inadmissable under Frye. The Second Department, in Zito v Zabarsky 28 AD3d 42, 812 NYS2d 535 (2nd Dept. 2006), held that the Frye test does not require medical texts, or other literature to support a plaintiff's theory under circumstances virtually identical to those of the plaintiff. The Court further stated that "The fact that there was no textual authority directly on point to support the expert's opinion is relevant only to the weight to be given the testimony but does not preclude its admissibility." Id at 46, 539.

While Dr. Rivera-Mindt explained that normative databases are being developed to take into account language and cultural differences of various populations, this appears to be a recent and developing trend. She did not indicate that the older normative data which were based on white, native English speaking, cultural majority samples have ceased to be used or accepted in the neuropsychological community. She also testified that she was not aware of any norms being developed to differentiate among various white ethnic communities.

The practice of refining or developing more discriminate versions of standardized tests is generally accepted in the neuropsychological community. The practice is cited in the texts, "Neuropsychological Assessments" and "Handbook of Normative Data for Neuropsychological Assessment", both of which were accepted as authoritative by [*13]Dr. Rivera-Mindt. Developing norms specific to a particular version of a test is an accepted practice as well. Objections to the specific norms that were developed go to the weight to be accorded to the results of those tests, not to the general acceptance of the principles and methodologies on which the tests are based.

Expert opinion is admissible if it is based on acceptable scientific principles and not based solely on the expert's own unsupported beliefs. Diejoia v Gacioch, 42 AD3d 977, 839 NYS2d 904 (4th Dept 2007); Marsh v Smyth, 12 AD3d 307, 785 NYS2d 440 (1st Dept 2004).

Lastly, Plaintiff demonstrated that the use of personalized tests in conjunction with standardized tests is an accepted practice in the field. There were three personalized tests given, the Personalized Pictorial Similarities, Personalized Biblical Quiz, and the Personalized Prospective Memory Test. Since these tests were adapted specifically for the Plaintiff, they were not scored in reference to standardized normative data. They were scored against an expected number of correct answers based on the experience of Dr. Ben-Yishay. These tests were used to supplement the results of the standardized tests or provide a finer discrimination than the standard tests provided. As discussed above, the use of individualized tests as part of a battery of tests that includes standardized tests is a generally accepted practice in the field provided, as was the case here, that the individualized tests do not form the sole or primary basis for the assessment.

By reason of the foregoing, with the exception of the tests specified, Plaintiff has established that the use of the NYU tests was in accord with principles and methodologies generally accepted in the neuropsychological community.

WHEREFORE, Defendants motion to preclude is granted only as to the Controlled Oral Word Association Test (COWA), the Gates- McGinite Reading Test, the Writing Sample, NYU Telegram Test, the Written Categorical Reasoning Test, and the NYU Verbal Similarities Test, and it is denied as to all the other tests. This constitutes the decision and order of the Court.

E N T E R:

______________________________

J.S.C.