Opinion
Nos. 2011 3546.
March 10, 2011.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered May 8, 2009, which, insofar as appealed from as limited by the briefs, granted defendant New York City Health and Hospitals Corporation's motion to preclude plaintiffs' expert from testifying that plaintiff Carol Rowe should have been provided chelation therapy during pregnancy and to dismiss that allegation, unanimously affirmed, without costs.
Gorayeb Associates, P.C., New York (Mark J. Elder of counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for resopndent.
Before: Tom, J.P., McGuire, Acosta, Renwick and Freedman, JJ.
The motion court properly precluded plaintiffs' expert testimony on chelation because the expert's theories were contrary to the medical literature on the subject and therefore "unreliable" ( Parker v Mobil Oil Corp., 7 NY3d 434, 447).
Furthermore, the court properly precluded the testimony pursuant to Frye v United States ( 293 F 1013). Although we find that plaintiffs' theory that chelating Carol at the start of her third trimester would have prevented or reduced the claimed injuries to the infant plaintiff was a novel theory subject to a Frye analysis, plaintiffs failed to rebut defendant's showing that this theory was not generally accepted within the relevant scientific community. Plaintiffs' position was based solely on their expert's own unsupported beliefs ( see Marso v Novak, 42 AD3d 377, 378-379, lv denied 12 NY3d 704).