        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

165
CA 11-01764
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.


BELINDA MUHAMMAD, INDIVIDUALLY AND AS MOTHER AND
NATURAL GUARDIAN OF ASALAH ABDUL-MAALIX, AN
INFANT, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN K. FITZPATRICK, M.D., CATHOLIC HEALTH
SYSTEMS, SISTERS OF CHARITY FAMILY HEALTH CENTER
AND SISTERS OF CHARITY HOSPITAL OF BUFFALO,
DEFENDANTS-APPELLANTS.


DAMON MOREY LLP, BUFFALO (MICHAEL J. WILLETT OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

LAW OFFICES OF JOSEPH M. LICHTENSTEIN, P.C., MINEOLA (JOSEPH M.
LICHTENSTEIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Walker, A.J.), entered February 15, 2011 in a medical malpractice
action. The order, among other things, granted plaintiff’s motion to
preclude.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this medical malpractice action
seeking damages for injuries sustained by her infant daughter while
plaintiff was giving birth to her. Defendants appeal from an order
granting plaintiff’s pretrial motion to preclude defendants’ experts
from testifying with respect to the defense theory that the injuries
sustained by plaintiff’s daughter were caused by the birthing process,
and thus were unrelated to any action by defendants. We conclude on
the record before us that Supreme Court did not abuse its discretion
in granting plaintiff’s motion.

     Initially, we note that “it is axiomatic that a pretrial order
which limits the legal theories of liability to be tried will
constitute an appealable order . . . [but] an order which merely
limits the admissibility of evidence, even when made in advance of
trial on motion papers, constitutes, at best, an advisory opinion
which is neither appealable as of right nor by permission” (Strait v
Arnot Ogden Med. Ctr., 246 AD2d 12, 14 [internal quotation marks
omitted]). Here, we conclude that the order in question is “[a]n
order deciding . . . a motion [that] clearly involves the merits of
                                 -2-                           165
                                                         CA 11-01764

the controversy . . . and affects a substantial right . . . and thus
is appealable” (Rondout Elec. v Dover Union Free School Dist., 304
AD2d 808, 811; see Matter of City of New York v Mobil Oil Corp., 12
AD3d 77, 80-81).

     Based on the record before us, we conclude that the court did not
abuse its discretion in precluding the testimony pursuant to Frye v
United States (293 F 1013). We agree with plaintiff that defendants’
theory that the claimed injuries to her daughter were sustained as the
result of the birthing process was a novel theory subject to a Frye
analysis, and that defendants failed to rebut plaintiff’s showing that
their theory was not generally accepted within the relevant medical
community.

     Furthermore, even assuming, arguendo, that the evidence was
admissible under the Frye test, we conclude that the court did not err
in precluding evidence of defendants’ theory on the ground that it
lacked an adequate foundation for its admissibility. “The Frye
inquiry is separate and distinct from the admissibility question
applied to all evidence—whether there is a proper foundation—to
determine whether the accepted methods were appropriately employed in
a particular case” (Parker v Mobil Oil Corp., 7 NY3d 434, 447, rearg
denied 8 NY3d 828). Contrary to defendants’ contention, Parker’s
applicability is not confined to toxic tort cases (see Lugo v New York
City Health & Hosps. Corp., 89 AD3d 42, 62; Rowe v Fisher, 82 AD3d
490, 491). Therefore, the opinion of defendants’ experts on causation
should set forth the “exposure [of plaintiff’s daughter] to a [harmful
in utero event], that the [event] is capable of causing the particular
[injury] (general causation) and that plaintiff[’s daughter] was
exposed to [a sufficiently harmful event] to cause the [injury]
(specific causation)” (Parker, 7 NY3d at 448). Even if it can be said
that defendants established that plaintiff’s daughter was exposed to a
harmful event unrelated to their actions with respect to her birth, we
conclude that the court properly determined that defendants failed to
meet both the specific causation and general causation prongs of the
test set forth in Parker and thus that the court properly refused to
admit the testimony at issue.




Entered:   January 31, 2012                     Frances E. Cafarell
                                                Clerk of the Court
