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

1436
CA 14-00242
PRESENT: SCUDDER, P.J., CENTRA, CARNI, AND SCONIERS, JJ.


CHRISTOPHER JOHNSON, INDIVIDUALLY AND AS PARENT
AND NATURAL GUARDIAN OF ZACHARY JOHNSON,
PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

GUTHRIE MEDICAL GROUP, P.C., ET AL., DEFENDANTS,
INGRID STERLING, M.D., PRE-EMPTION FAMILY
MEDICINE, J. MICHAEL BELL, M.D., P.C., CYNTHIA
SKOVRINSKI, MS, FNPC, AND RICHARD J. AMSEL, M.D.,
DEFENDANTS-APPELLANTS.


LEVENE GOULDIN & THOMPSON, LLP, VESTAL (LAUREN KILEY SALEEBY OF
COUNSEL), FOR DEFENDANT-APPELLANT INGRID STERLING, M.D.

HIRSCH & TUBIOLO, P.C., ROCHESTER (BRYAN S. KORNFIELD OF COUNSEL), FOR
DEFENDANTS-APPELLANTS PRE-EMPTION FAMILY MEDICINE, J. MICHAEL BELL,
M.D., P.C. AND RICHARD J. AMSEL, M.D.

DONAHUE, SABO, VARLEY & HUTTNER, LLP, ALBANY (KENNETH G. VARLEY OF
COUNSEL), FOR DEFENDANT-APPELLANT CYNTHIA SKOVRINSKI, MS, FNPC.

CONWAY & KIRBY, PLLC, LATHAM (DANA BONIEWSKI OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeals from an order of the Supreme Court, Onondaga County
(Deborah H. Karalunas, J.), entered October 16, 2013. The order,
among other things, denied the motions of defendants Ingrid Sterling,
M.D., Pre-Emption Family Medicine, J. Michael Bell, M.D., P.C.,
Cynthia Skovrinski, MS, FNPC, and Richard J. Amsel, M.D., to preclude
certain testimony.

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

     Memorandum: Plaintiff commenced this medical malpractice action
in July 2006, alleging, inter alia, that defendants Ingrid Sterling,
M.D., Pre-Emption Family Medicine, J. Michael Bell, M.D., P.C.,
Cynthia Skovrinski, MS, FNPC, and Richard J. Amsel, M.D.
(collectively, defendants) failed to timely diagnose his son, born
April 6, 2001, with melanoma. Following removal of the child’s stage
IV tumor in August 2004, further surgery was required to remove lymph
nodes and his fifth finger to the wrist. Thereafter, the child
underwent one month of a high-dose treatment with Interferon-alpha
                                 -2-                          1436
                                                         CA 14-00242

(IFN-a), followed by 11 months of a low-dose IFN-a treatment. In July
2013, plaintiff served a fifth and sixth supplemental bill of
particulars and expert disclosure, alleging that the treatment with
IFN-a caused long-term cognitive deficits, resulting in future loss of
earnings and future life care expenses for the child. In various
motions, defendants moved to strike the fifth and sixth bills of
particulars; to preclude the expert disclosure; and to preclude expert
testimony regarding the alleged causal relationship between IFN-a
treatment and long-term cognitive deficits or, in the alternative, for
a Frye hearing (see Frye v United States, 293 F 1013). Supreme Court
denied the motions. Defendants, as limited by their briefs, contend
that the court erred in denying the motions to preclude expert
testimony or for a Frye hearing.

     As a preliminary matter, we note that the court’s pretrial order
is appealable inasmuch as it “clearly involves the merits of the
controversy” with respect to medical causation of alleged long-term
cognitive defects, and “affects a substantial right” of the parties
(Muhammad v Fitzpatrick, 91 AD3d 1353, 1353-1354; see CPLR 5701 [a]
[2] [iv], [v]; Parker v Mobil Oil Corp., 16 AD3d 648, 650, affd 7 NY3d
434, rearg denied 8 NY3d 828).

     With respect to the merits, we conclude that the court did not
abuse its discretion in denying that part of defendants’ motions
seeking to preclude the expert testimony of a physician and a
neuropsychologist. Defendants supported their motions with the expert
affidavit of a board-certified neuropsychologist, who opined that the
theory of causation for the child’s cognitive deficits espoused by
plaintiff’s experts, i.e., that the IFN-a treatment caused those
deficits, is not generally accepted in the scientific community.
Defendants’ expert acknowledged that chemotherapy can cause damage to
healthy brain tissue and result in cognitive/neuropsychological
deficits, but he disputed that IFN-a is a chemotherapeutic agent. In
response, plaintiff provided, inter alia, the redacted affidavit of
his undisclosed expert, a board-certified physician in pediatrics and
pediatric hematology-oncology, who opined with a reasonable degree of
medical certainty that the child’s neurocognitive, educational, and
emotional disabilities were caused by the use of IFN-a to treat
melanoma and that such theory of causation is “supported in the
scientific community.” Plaintiff’s undisclosed expert disputed the
assertion of defendants’ expert that IFN-a is not a chemotherapeutic
agent. Plaintiff’s undisclosed expert supported his/her theory of
causation with numerous articles discussing the negative cognitive
effects experienced by adults during and after treatment with IFN-a
and the negative long-term effects of chemotherapy treatment on the
developing brains of children. Plaintiff’s undisclosed expert
conceded that there are no studies regarding the long-term cognitive
effects on children from IFN-a treatment.

     We conclude that the court properly denied that part of
defendants’ motions seeking a Frye hearing inasmuch as “the theory of
causation set forth by plaintiff’s expert[s] . . . is not premised on
novel science but, rather, is premised on generally accepted
scientific principles and existing data . . . Frye is not concerned
                                 -3-                          1436
                                                         CA 14-00242

with the reliability of a certain 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” (DieJoia v Gacioch, 42 AD3d 977, 979 [internal quotation
marks omitted]). Instead, we consider whether there is a proper
foundation for the evidence to be admitted at trial (see Parker, 7
NY3d at 447). Here, we conclude that the court did not abuse its
discretion in determining that there is a proper foundation for that
evidence (see Jackson v Nutmeg Tech., Inc., 43 AD3d 599, 602). The
experts laid a foundation for the theory that the child’s cognitive
deficits were caused by treatment with IFN-a with generally accepted
medical principles of the cognitive effects on adults treated with
IFN-a, a chemotherapeutic agent, and the cognitive effects of
chemotherapy on the developing brain of a child. “ ‘[T]he underlying
support for the theory of causation [need not] consist of cases or
studies considering circumstances exactly parallel to those under
consideration in the litigation. It is sufficient if a synthesis of
various studies or cases reasonably permits the conclusion[s] reached
by the plaintiff’s expert[s]’ . . . ‘The fact that there was no
textual authority directly on point’ . . . ‘is relevant only to the
weight to be given to the testimony, but does not preclude its
admissibility’ ” (DieJoia, 42 AD3d at 979-980).




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
