Upon the foregoing papers, the motion by the People for an order granting the People leave to reargue this Court's order dated April 7, 2009, is granted (see, Foley v. Roche, 68 AD2d 558). Upon reargument, for the reasons stated below, the Court adheres to its April 7, 2009 order permitting the defendant to introduce expert testimony from Dr. Stefan Kruszewski pertaining to the behavioral side effects of Zoloft and Zoloft withdrawal.

The defendant, Brandon W. Hampson, is charged with committing the following crimes: under docket number 21294/06, the defendant is charged with violating PL §120.00 [Assault in the Third Degree], a class "A" misdemeanor; PL §110/120.00 [Attempted Assault in the Third Degree], a class "B" misdemeanor; PL §120.15 [Menacing in the Third Degree], a class "B" misdemeanor; PL §135.05 [Unlawful Imprisonment in the Second Degree], a class "A" misdemeanor; and PL §240.26 [Harassment in the Second Degree], a violation. Under docket number 25365/06, the defendant is charged with violating PL §215.50 [Criminal Contempt in the Second Degree], a class "A" misdemeanor.

As part of his defense to theseallegations, the defendant claims that his actions and behavior were caused by the side effects or withdrawal from a prescription drug, Zoloft. To establish this defense, the defendant proposes to call upon Dr. Stefan Kruszewski to testify about the possible risks, harmful effects and consequences of taking and withdrawing from a mood-altering drug such as Zoloft. The People argued that Dr. Kruszewski's theories about the effects of Zoloft have not gained general acceptance in the scientific community, and moved to exclude defendant's expert from testifying at trial. Consequently, a hearing was conducted pursuant to Frye v. United States, (293 F 1013 [DC Cir 1923]) (hereinafter Frye) to assess whether Dr. Kruszewski's proposed expert testimony is generally accepted as reliable in the scientific community.

Dr. Kruszewski testified before the Court on January 12, 2009; his cross-examination was [*2]held on February 23, 2009. The Court heard the People's expert, Dr. Douglas Jacobs, on April 6 and April 7, 2009, in rebuttal.

At the Frye hearing, Dr. Kruszewski testified that a small group of people who take or ingest antidepressants [the class of drugs which includes Zoloft] will suffer significant side effects which may include impulsivity, agitation, excessive aggression, grandiosity, and hypomania. Dr. Kruszewski testified that these behaviors could be seen as a side effect or as a withdrawal symptom from the drug. Dr. Kruszewski's testimony, and thus his opinion, relied upon review of psychiatric and neuro-psychiatric literature as well as the Yale Medical Letter [now referred to as the "Medical Letter"]. The publications relied upon are generally accepted within the medical field, as are the studies and reports cited by the expert.

The People's expert, Dr. Jacobs, testified that Dr. Kruszewski's opinion on the possible negative consequences of taking and/or withdrawing from Zoloft, is not generally accepted by experts in the field as being supported by the relevant studies and reports. Dr. Jacobs further claimed that the methodology of Dr. Kruszewski's research is flawed. Dr. Jacobs testified that the "gold standard" in determining causation is a clinical trial. It is undisputed that Dr. Kruszewski did not rely on any clinical trials in formulating his theory. Dr. Jacobs identified studies and reports which made contradictory findings to those espoused by Dr. Kruszewski. In clear contrast to Dr. Kruszewski's testimony, Dr. Jacobs opined that Zoloft and its class of drugs reduced aggression, reduced anger and reduced hostility with no evidence of side effects or withdrawal symptoms of impulsivity or aggression as proffered by the defense. Dr. Jacobs notably testified and conceded that Dr. Kruszewski and he have a wide difference of opinion with regard to SSRIs (Selective Serotonin Reuptake Inhibitors) and how they affect people as well as a difference of interpretation and understanding of the related literature.

After hearing testimony from both witnesses, the Court rendered a decision on the record in open Court on April 7, 2009, which found that the studies, reports and publications cited and relied upon by Dr. Kruszewski were generally accepted within the medical field, that Dr. Kruszewski's testimony would be admissible at trial, and that the People's expert could testify in rebuttal.

On April 13, 2009, the case was scheduled for trial. However, the People indicated their intention to file a motion to reargue the Court's decision regarding the admissibility of the testimony of the defendant's expert witness. A motion schedule was granted, and both parties submitted papers.

In support of their motion to reargue, the People contend that the Court misapplied the Frye standard and overlooked evidence which discredited Dr. Kruszewski's testimony. The People further argue that the defendant did not meet his burden under Frye.

In New York the admissibility of scientific testimony at trial is governed by the Frye standard, which holds that the scientific testimony can only be admitted at trial if both the procedure and the results "are generally accepted as reliable in the scientific community" (People v. Hughes, 59 NY2d 523, 537 [1983]). The burden of laying this foundation lies with the party seeking to introduce the evidence in question (People v. Wilson, 133 AD2d 179 [2d Dept. 1987]). In the [*3]present motion, the defendant bears that burden.

The United States Supreme Court abandoned the Frye standard in Daubert v. Merrell Dow Pharms., 509 US 579 [1993]. However, the holding in Daubert is not controlling on this Court since it was based upon the Federal Rules of Evidence, which are not applicable to New York court cases. As recently as 2006, the Court of Appeals has reaffirmed that Frye, and not Daubert, is still the applicable standard in New York (Parker v. Mobil Oil Corp., 7 NY3d 434, 447 [2006]) and this Court is obligated to adhere to that standard.

The determination of what represents admissible expert testimony generally lies within the discretion of the trial court (People v. Cronin, 60 NY2d 430 [1983]). There is no specific holding defining the limits of what evidence is generally accepted. Guidance in this regard can be found from the Frye decision itself. The Court in Frye held:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, 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 (Frye, 293 F at 1014).

However, the Court of Appeals has interpreted Frye to mean that a method or position need not have unanimous support in order to have reached a level of general acceptance (People v. Middleton, 54 NY2d 42 [1981]). The test is not whether a particular procedure is unanimously endorsed by the scientific community, but whether it is generally accepted as reliable (Id.).

The Court of Appeals has characterized this standard as requiring a determination of "whether the accepted techniques when properly performed, generate results accepted as reliable within the scientific community generally" (People v. Wesley, 83 NY2d 417, 422 [1994]; see also Parker v. Mobil Oil Corp., 7 NY3d 434, 448 [2006]). It is well settled that "[t]he introduction of novel scientific evidence calls for a determination of its reliability" (Parker, 7 NY3d at 446].

In situations where a new scientific methodology is not being employed, the Court of Appeals leans towards an analysis, as it stated in Parker v. Mobil Oil Corp., 7 NY3d 434, of whether there is a proper scientific foundation for the opinions formed, and less weight given to whether there is a general acceptance for the methodology used (Parker at 447). A trial court recently held that "[a]fter Parker,if the methodology is not novel and the issue is whether the methodology leads to a reliable theory of causation, the theory should arguably be scrutinized not under Frye for general acceptance, but under foundational principles for reliability" (see, Matter of Neurontin Prod. Liab. Litig., 2009 NY Slip Op 51459[U], [Sup Ct New York Co., 2009]).

Notwithstanding that line of reasoning, it is still important to view the evidence under the Frye standard as it has evolved, even when applying it to a novel conclusion drawn from more established methodology. The requirement under Frye that a theory be "generally accepted" does not mean that only "conclusively established or unanimously supported" propositions are fit to reach [*4]the jury (Fraser v. 301-52 Townhouse Corp., 57 AD3d 416, 418 n 2 [1st Dept 2008]; see also People v. Middleton, supra; Zito v. Zabarsky, 28 AD3d 42, 44 [2d Dept 2006] [holding "general acceptance" to mean "that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions"]).

Upon reviewing the record, this Court finds that the defendant has met his burden of demonstrating that his expert's testimony is admissible under the Frye standard.

The defendant and the People have presented distinguished experts who possess differing opinions on the effect SSRIs may have on the population for which they are prescribed. Thus, the Court should not look to see which expert is correct, but whether each expert's testimony is based on reliable methods (see Marsh v. Smyth, 12 AD3d 307 [1st Dept 2004]). Both experts meet that standard and the triers of fact should have an opportunity to weigh the credibility of the expert's testimony under the crucible of cross-examination.

The jury selection for the trial of this action shall take place as scheduled on September 8, 2009.

The foregoing constitutes the decision and order of this Court.

SO ORDERED.

__________________________________

DISTRICT COURT JUDGE

Dated: August 21, 2009

cc: Kathleen M. Rice, District Attorney 516 572-2606

Eric Bernstein, Esq. Fax 212 448-0066