Plaintiff moves for a protective order in connection to a "Functional Capacity Test (FCE) which the defendant, York Hunter Services, Inc (York) seeks to have the plaintiff undergo. Plaintiff opposes the FCE on scientific testing grounds, asserting that the methodology involved in a FCE has not been found valid. Plaintiff submits that the FCE which is a novel scientific methodology and therefore must be shown to have been "generally accepted" by the relevant scientific community. Frye v. United States, 293 F.1013 (D.C. Cir. 1923), People v. Wesley, 83 NY2d 417 (1994).

York opposes the motion on the grounds that the Frye standard is inapplicable at this stage of litigation and rather should be challenged at the trial phase, if at all. York also asserts that FCEs have been admitted by the New York State Appellate Courts and therefore have been deemed generally accepted. Further, that the FCE is relevant, material and necessary to the defense of the action.

When the testing has yet to achieve general acceptance as reliable scientific procedure proposed testing in the course of discovery must satisfy a two prong test,. First, as all discovery must [*2]satisfy is the requirement of "material and relevant" as set forth in CPLR 3101. Second, a threshold demonstration must be made that the testing will yield information which is not only relevant but scientifically reliable and valid. Mena v. Key Food Stores Co-Operative, Inc., 191 Misc 2d 469 [Sup. Kings 2002].

York argues that as New York State Appellate Courts have admitted the results of FCEs that they are therefore accepted by the general scientific community. Plaintiff asserts that the cases which York relies upon do not discuss the scientific reliability of such testing. Rather, plaintiff argues that the issues surrounding the admissibility of the FCEs were generally hearsay objections.

Plaintiff is correct as to two of the cases defendant relies upon. In Trimble v. Hawker Dayton Corp., the appeal was based on a hearsay objection. The doctor conducting the FCE relied on a hearsay statement of the treating doctor. The court found the report of the treating doctor and the reliance thereupon appropriate. 307 AD2d 452 [3d Dept 2003]. In Greene v. Xerox Corp., the appeal was based on the fact that the doctor conducting the FCE had left the room and certain tests which he was to testify to were performed outside of his presence. The Court held that his testimony was appropriate because the trial court precluded testimony regarding those tests done while he was not present. 244 AD2d 877 [4th Dept 1997].

However, in Fleiss v. South Buffalo R. Co., the court allowed the defendant's doctor to testify as to the FCE report because it was deemed the "type of out of court materials accepted as reliable by experts in the medical profession" and therefore did not constitute hearsay. 291 AD2d 848 [4th Dept 2002]. Upon review of the appellate briefs in Fleiss it is clear that the issue of general acceptance was before the court as the defendant's reply stated "[f]unctional capacity evaluations are commonly relied upon by physicians when making determinations on a patient's ability to return to work. . ." The defendant in Fleiss asserted that FCEs are the kind accepted by those in the profession as reliable in forming their opinion and therefore the report constituted a hearsay exception. As it is clear that the Fourth Department has determined FCEs to be generally accepted in the scientific community and due to the dearth of cases on the point in the Second Department this court will conform to the Fourth Department's determination.

Therefore, the motion is denied and the plaintiff is directed to appear at an FCE within 30 days of entry of this order.

This constitutes the decision and order of the court.

J.S.C.