On December 11, 2014, CCL filed a brief arguing that a trial court erred in excluding expert evidence on the effect of gasoline fumes in causing neurological defects in a child born with severe neurological problems. The case, Sean R. v. BMW of North America LLC, pending in the New York Court of Appeals, will determine the level of reliability an expert must meet to satisfy the Frye test, which requires expert scientific evidence to use methodologies that are generally acceptable within the relevant expert community. CCL’s brief was filed on behalf of amicus curiae American Association for Justice.

The issue arose because the plaintiff family purchased a new 1989 BMW, but emitted a strong odor of gasoline inside the car. Plaintiff Debra Reeps drove the car throughout the first trimester of her pregnancy. Subsequently, the BMW dealer identified a defective hose as the source of the gasoline fumes. Sean Reeps was later born with severe birth defects, including brain damage. Plaintiff brought this product liability action against the manufacturer, alleging that Sean’s exposure in utero to gasoline fumes was the cause of his injuries.

The trial court granted defendant’s motion for summary judgment. The court held that the testimony of plaintiff’s experts that in utero exposure to gasoline vapors or that of its components can cause birth defects (general causation) is not admissible in the absence of epidemiological studies demonstrating such an association. In addition, plaintiff was required to show that gasoline vapors, not simply the vapors of gasoline components, such as toluene or benzene, may cause birth defects. Moreover, the court ruled, plaintiff was obliged to show an association between gasoline exposure and the specific neurological defects suffered by Sean. The court also held that plaintiff’s expert testimony quantifying Debra’s exposure (specific causation), based on “odor threshold methodology,” was insufficient because the expert’s numbers “just don’t add up.” The appellate division affirmed in a short opinion.

AAJ’s amicus brief to the Court of Appeals, authored by CCL Senior Counsel Jeffrey R. White, contended that these overly stringent requirements were not consistent with the weight of authority across the country and did not comport with the practice of scientists. The brief emphasized that the types of causation evidence plaintiff offered were noted with approval in the Federal Judicial Center’s Reference Manual on Scientific Evidence. The court also erred in excluding plaintiff’s experts by focusing on the experts’ conclusion, rather than inquiring into the general acceptance of their methodology, as Frye jurisdictions require. As a result, plaintiff was deprived of his constitutional right to present the merits of his case to a jury.