## Facts

- Denise Brouard and Gerald Brouard sued James Convery and rental-car defendants (PV Holding Corp. and Avis Rent A Car System, Inc.) for negligence arising from a December 14, 2004 automobile collision in Suffolk County, New York.
- Plaintiffs alleged that Convery, while making a left turn, struck the front of Denise Brouard’s vehicle.
- Plaintiffs claimed Denise Brouard suffered a mild traumatic brain injury (MTBI) and additional injuries to her neck, back, shoulder, and knee.
- To support the MTBI claim, plaintiffs sought to rely on neuroradiological studies, including diffusion tensor imaging (DTI), as the foundation for expert opinions offered to show brain injury and related impairment.
- The action had been pending for years (commenced in 2005), during which time DTI technology and related research developed.
- Plaintiffs moved for an order taking judicial notice that DTI is generally accepted under New York’s Frye standard and, based on that finding, to bar defendants from contesting plaintiffs’ DTI-based expert proof.
- Defendants cross-moved for relief under CPLR 4532-a and Frye, seeking preclusion of DTI and related neuroradiological evidence offered to diagnose or prove MTBI, or alternatively a Frye hearing; defendants also sought disclosure of the underlying imaging data and argued plaintiffs had not complied with prior disclosure obligations.
- In support of preclusion, defendants relied in part on scientific literature, including a 2014 white paper concluding that DTI and related advanced neuroimaging were not accepted for clinical diagnosis or prognostication of traumatic brain injury in individual patients.

## Issues

1. Should the court take judicial notice that DTI is generally accepted for diagnosing or proving mild traumatic brain injury, and preclude defendants from challenging DTI-based expert testimony?
2. Under Frye, is DTI (and related neuroradiological studies) generally accepted as reliable for diagnosing MTBI and for drawing conclusions about injury and causation in an individual civil plaintiff?
3. Did plaintiffs’ disclosure failures concerning the imaging data and related materials provide an additional basis for precluding the DTI-based proof under CPLR 4532-a and the court’s prior orders?

## Decision

- Plaintiffs’ motion for judicial notice of DTI’s general acceptance and for preclusion of defense challenges was denied.
- Defendants’ cross-motion to preclude DTI-based neuroradiological study evidence and related expert testimony was granted.
- Because the challenged proof was precluded, the court did not proceed with a Frye (or related) evidentiary hearing in this case.

## Legal Principles

- Under Frye, scientific evidence is admissible only if the principle or method has gained general acceptance as reliable within the relevant scientific community for the specific purpose for which it is offered.
- General acceptance is not shown merely because a technique exists, is improving, or appears in research; the question is whether it is accepted for clinical/forensic use in diagnosing or proving the condition at issue in an individual.
- Judicial notice is not appropriate where “general acceptance” is disputed and the record includes significant scientific disagreement; the proponent must still establish Frye reliability for the intended use.
- Trial courts act as gatekeepers to prevent a jury from hearing scientific proof that has not achieved general acceptance for the diagnostic or causation inference the proponent seeks to draw.
- Independent of Frye, nonproduction of underlying testing materials and failure to meet disclosure duties tied to medical testing and imaging (including CPLR 4532-a and court-ordered disclosure) can support preclusion of the proponent’s imaging-based proof.

## Conclusion

In this negligence action arising from a 2004 collision, the court declined to take judicial notice that diffusion tensor imaging is generally accepted to diagnose or prove mild traumatic brain injury and granted defendants’ motion to preclude DTI-based neuroradiological evidence and related expert testimony, relying on Frye’s general-acceptance requirement and plaintiffs’ disclosure deficiencies under CPLR 4532-a and prior orders.


Brouard v. Convery, 70 N.Y.S.3d 820 (2018)