Upon the foregoing papers, the motion in limine by the plaintiff to preclude the testimony of defendant's accident reconstruction expert, James R. Funk, Ph.D. and biomechanical engineering expert, Richard M. Harding, BSc, MB BS, Ph.D is denied.

The cause of action underlying this claim is for personal injuries allegedly sustained by the plaintiff, Alejandro Gaona-Garcia, on January 24, 2006, when the motor vehicle that was being driven by the plaintiff was struck from behind by a motor vehicle operated by the decedent, William E. Ruckel. A central issue in this case is whether the force generated by the impact between these two vehicles was sufficient to cause the plaintiff's claimed injuries.

At the outset, it must be noted that at issue are two defense experts, Dr. Funk and Dr. Harding, who are expected to testify at trial regarding separate areas of expertise. Although plaintiff's motion seeks to preclude the testimony of both experts, the bulk of plaintiff's argument focuses exclusively on the purported reasons why Dr. Harding's testimony should be deemed inadmissible by this Court. Plaintiff sets forth a plethora of case law and grounds to preclude Dr. Harding but fails to adequately address how Dr. Funk's anticipated testimony would be similarly impermissible. Therefore, this Court finds that plaintiff's cursory analysis is incomplete, at a minimum.

Both parties agree that the standard of admissibility for expert testimony in New York which is based on scientific principles or procedures is governed by the "general acceptance test" set forth in Frye v. United States, 293 F. Supp 1013 (D.C. Cir. 1923). New York courts have repeatedly declined to accept the federal standard for admitting scientific evidence established under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). While [*2]other states may have adopted this multi-factored analysis to assess expert testimony, New York remains "a Frye state." As such, this Court is bound by this precedent.

Plaintiff, in his motion, asserts that the Court has a twofold duty under Frye — to review proffered expert evidence to ascertain whether it is scientifically or technically reliable and to determine whether that evidence is "generally acceptable" in the scientific community. Plaintiff also cites C.P.L.R. § 4515 as further support for his argument and interprets that statute to imply an outright duty on the experts' part to provide support for their opinions. Plaintiff's analysis is flawed.

First, C.P.L.R. § 4515 states that, "Upon cross-examination, [an expert] may be required to specify the data and other criteria supporting the opinion (emphasis added)." According to C.P.L.R. § 4515, plaintiffs are within their right to cross-examine defendant's experts regarding the basis of their opinions but the statute does not provide any support for excluding the scientific evidence.

Second, contrary to plaintiff's interpretation, the Court's gatekeeping function under Frye does not extend to engaging in its own independent, unbridled review of a proposed expert's methodology and resultant conclusions. Rather, the purpose of the Frye test is "to ensure that courts do not rely upon an expert's testimony regarding a novel procedure, methodology or theory unless it has been generally accepted' within the relevant scientific community as leading to reliable results (citations omitted). Marsh v. Smyth, 12 AD3d 307, 310 (1st Dept. 2004). Citing Chief Judge Kaye in her concurring opinion in People v. Wesley, 83 NY2d 417 (1994), the Marsh court further clarified that in undergoing the reliability analysis under Frye, the court does not "determine whether the method was or was not reliable but whether there was consensus in the scientific community as to its reliability. The Frye test emphasizes counting scientists' votes, rather than on verifying the soundness of a scientific conclusion." Id. a 311. Therefore, this Court's role is limited to determining whether the experts' deductions are based on principles that are sufficiently established to have gained general acceptance.

As to plaintiff's specific contentions, he first asserts that the use of biomechanical engineering principles for injury causation analysis is not generally accepted in the scientific community and amounts to "junk science" warranting preclusion. Plaintiff's contention is unpersuasive. In the instant matter, Dr. Funk and Dr. Harding are expected to testify in two scientific fields, accident reconstruction and biomechanical engineering. These disciplines have been found generally accepted as reliable in the scientific community and as a result, testimony concerning same has been recognized for some time by the Court. See Valentine v. Grossman, 283 AD2d 571 (2d Dept. 2001) and Martell v. Chrysler Corp., 186 AD2d 1059 (4th Dept. 1992). It is also well established that New York courts have specifically held that a biomechanical engineer is qualified to give opinion testimony regarding whether the force of impact in an accident could cause a plaintiff's alleged injury. Worell v. Kantago, Sup. Ct., Bronx County, March 3, 2011, Payne, J., Index No. 303540/09; Plate v. Palisade Film Delivery Corp., 39 AD3d 835 (2nd Dept. 2007); Cardin v. Christie, 283 AD2d 978 (4th Dept. 2001). In fact, plaintiff has noticed its own biomechanical expert as a trial witness.

In support of his argument, plaintiff emphasizes that the studies and methods relied upon by Dr. Funk and Dr. Harding to form their opinions are unreliable and biased. The most common ways an expert may establish that his methodology has been generally accepted as reliable in the scientific community is by citing to peer-reviewed literature in the field, showing that independent studies have been performed utilizing this methodology, demonstrating that the [*3]results have been duplicated and establishing that the studies were done on a significant number of subjects. Santos v. Nicolas, 24 Misc 3d 999 (Sup. Ct., Bronx County 2009). However, plaintiff has not established that the defendant's experts relied upon novel, unreliable or biased scientific methods or sources. Here, Dr. Funk and Dr. Harding specifically refer to peer-reviewed articles to support their findings and anticipated testimony in this matter. The peer-reviewed articles demonstrate a general acceptance by the scientific community of the principles that the experts relied upon in conducting their findings in this matter. Additionally, the publications relied upon by both Dr. Funk and Dr. Harding were not published by their company, Biodynamic Research Corporation, nor were they authored or created by professionals associated with their company.

Plaintiff's remaining contention, that Dr. Harding is not qualified to give opinion testimony regarding medical causation of injury because he is not licensed to practice medicine in the United States, is also without merit. Plaintiff cites Santos (supra)to support the general proposition that New York courts have consistently precluded the testimony of biomechanical-medical witnesses as to whether the force of impact in an accident could cause a plaintiff's injury. However, this case is distinguishable from Santos. In Santos, the Court precluded the testimony of the defendant's biomechanical expert because he did not have a license to practice medicine anywhere and did not cite to any scientific literature supporting his methodology. Here, it is undisputed that Dr. Harding is a licensed doctor in England, where he has also practiced medicine. As previously noted, Dr. Harding also specifically referred to peer-reviewed articles to support his findings in this matter. Defendant has also demonstrated that Dr. Harding has been previously qualified as an expert on biomechanics and injury causation, has testified at the trials of other matters in the state of New York and has not been precluded in the past. The fact that he is not a licensed physician in the United States goes to the weight of the evidence to be accorded to his testimony and not to its admissibility. See Borawski v. Huang, 34 AD3d 409 (2nd Dept. 2006).

The proffered expert opinion is probative of a central issue in this case and represents the consensus of the medical and scientific community by clear and convincing evidence. People v. Williams, 6 NY2d 18 (NY 1958).

Based on the foregoing, Dr. Funk's and Dr. Harding's testimony will be admitted at this trial for the jury's consideration. The weight to be accorded their expert testimony is a matter to be determined by the trier of fact, who is free to accept or reject their testimony in whole or in part. Coates v. Peterson & Sons, 48 AD2d 890 (2nd Dept. 1975).

Accordingly, the plaintiff's motion in limine to preclude the testimony of defendant's accident reconstruction expert, James R. Funk, Ph.D. and his biomechanical engineering expert, Richard M. Harding, BSc, MB BS, Ph.D is denied.

This opinion constitutes the decision and order of this court.

Dated: May 23, 2011__________________________________________

J.S.C.