DieJoia v. Gacioch, 42 A.D.3d 977 (N.Y. App. Div. 2007). · Go Syfert
DieJoia v. Gacioch, 42 A.D.3d 977 (N.Y. App. Div. 2007). Cases Citing This Book View Copy Cite
21 citation events (21 in the last 25 years) across 1 distinct court.
Strongest positive: Johnson v. Guthrie Medical Group, PC. (nyappdiv, 2015-02-06)
Treatment trajectory · 2008 → 2026 · click a year to view as-of
2008 2017 2026
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) Johnson v. Guthrie Medical Group, PC.
N.Y. App. Div. · 2015 · confidence medium
Frye is not concerned 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 [2007] [internal quotation marks omitted]).
discussed Cited as authority (rule) Johnson v. Guthrie Medical Group, PC.
N.Y. App. Div. · 2015 · confidence medium
Frye is not concerned 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 [2007] [internal quotation marks omitted]).
discussed Cited as authority (rule) JOHNSON, CHRISTOPHER v. GUTHRIE MEDICAL GROUP, P.C.
N.Y. App. Div. · 2015 · confidence medium
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]).
examined Cited as authority (rule) LaRose v. Corrao (3×) also: Cited "see"
N.Y. App. Div. · 2013 · confidence medium
The test’s limited purpose is to ascertain whether the expert’s conclusion is based upon accepted scientific principles, rather than simply the expert’s own unsupported beliefs (see DieJoia v Gacioch, 42 AD3d 977, 980 [2007]; Zito v Zabarsky, 28 AD3d 42, 46 [2006]; see also Rowe v Fisher, 82 AD3d 490, 491 [2011]).
examined Cited as authority (rule) LaRose v. Corrao (3×) also: Cited "see"
N.Y. App. Div. · 2013 · confidence medium
The test’s limited purpose is to ascertain whether the expert’s conclusion is based upon accepted scientific principles, rather than simply the expert’s own unsupported beliefs (see DieJoia v Gacioch, 42 AD3d 977, 980 [2007]; Zito v Zabarsky, 28 AD3d 42, 46 [2006]; see also Rowe v Fisher, 82 AD3d 490, 491 [2011]).
discussed Cited as authority (rule) Ratner v. McNeil-PPC, Inc.
N.Y. App. Div. · 2011 · confidence medium
Corp., 89 AD3d 42 [2d Dept 2011] [where the Supreme Court determined that the testimony of the plaintiffs’ experts that the infant plaintiffs brain injuries were caused by an episode of severe neonatal hypoglycemia lasting 81 minutes was inadmissible, this Court disagreed, finding that the Supreme Court had applied the Frye test too restrictively given that hypoglycemia can cause brain injury, that certain infants are more susceptible than others to neurologic injury, and that hypoglycemia is a toxic and dangerous state with no safe level]; DieJoia v Gacioch, 42 AD3d 977, 978 [2007] [holding…
examined Cited as authority (rule) Lugo v. New York City Health & Hospitals Corp. (3×) also: Cited "see"
N.Y. App. Div. · 2011 · confidence medium
“Frye is not concerned with the reliability of a certain expert’s conclusions, but instead with ‘whether the experts’ deductions are based on principles that are sufficiently established to have gained general acceptance as reliable’ ” (Nonnon v City of New York, 32 AD3d at 103 , quoting Marsh v Smyth, 12 AD3d 307, 308 [2004]; see Lipschitz v Stein, 65 AD3d at 576 ; Alston v Sunharbor Manor, LLC, 48 AD3d 600, 602 [2008]; DieJoia v Gacioch, 42 AD3d 977, 979 [2007]; see also Ellis v Eng, 70 AD3d 887, 892 [2010]).
discussed Cited as authority (rule) Leffler v. Feld
N.Y. App. Div. · 2008 · confidence medium
The medical literature cited by plaintiffs’ expert, which included a Food and Drug Administration mandate that pemphigus be added to the manufacturer’s list of adverse reactions to Altace, supported his theory that Altace can cause pemphigus, thus satisfying the Frye standard (see Zito, 28 AD3d at 45-46 ; DieJoia v Gacioch, 42 AD3d 977, 978-980 [2007]; Marsh v Smyth, 12 AD3d 307 [2004]).
Retrieving the full opinion text from the archive…
Jean DieJoia
v.
Gerald M. Gacioch, M.D.
Appellate Division of the Supreme Court of the State of New York.
Jul 18, 2007.
42 A.D.3d 977
Cited by 8 opinions  |  Published

Appeal from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.), entered June 16, 2006 in a medical malpractice action. The order granted defendants’ motions to dismiss the complaint pursuant to CPLR 4401.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motions are denied, the complaint is reinstated and a new trial is granted.

Memorandum: Plaintiff commenced this medical malpractice action alleging, inter alia, that the manner in which defendant Gerald M. Gacioch, M.D. performed a cardiac catheterization on plaintiff was improper and caused an acute spinal cord infarct four days later, leaving plaintiff paralyzed and incontinent. Supreme Court granted defendants’ motions to dismiss the complaint on the ground that plaintiff presented no competent[*978] medical testimony on the issue of causation, and plaintiff appeals. We reverse.

We conclude that the court erred in agreeing with defendants following a Frye hearing that plaintiffs expert vascular surgeon (hereafter, expert surgeon) and plaintiffs treating vascular surgeon (hereafter, treating surgeon) were not permitted to testify on the issue of causation. Plaintiffs expert surgeon testified that the thrombosis that originated at the site of the catheterization in the groin occluded the entire right and left femoral arteries and also grew to occlude the distal aorta and the sacral spinal vessels, leaving only one vessel to support the whole spine and provoking the spinal stroke and ultimate paralysis. He further testified that it was well documented that a thrombosis of the distal aorta involving both right and left iliac vessels can result in spinal paralysis and that this was not a novel theory, and indeed had been described in the medical literature for 20 to 30 years. Plaintiffs expert surgeon conceded, however, that the medical literature that he reviewed does not specifically identify cases in which cardiac catheterization in the groin was the cause of the aortic thrombosis that led to an acute spinal cord infarct and paralysis. The court’s ruling following the Frye hearing with respect to plaintiffs expert surgeon was based almost exclusively on the fact that he could not produce any medical literature indicating that cardiac catheterization has ever caused thrombosis and, subsequently, paralysis. In determining that plaintiffs expert surgeon would not be permitted to testify concerning causation, the court thus determined that his theory of causation was novel and not yet accepted in the medical field. Similarly, when the court required plaintiffs treating surgeon to explain his theory of causation during the Frye hearing, he also was unable to produce any medical literature that specifically supported his theory that cardiac catheterization could lead to delayed paralysis. At the close of plaintiffs case, the court granted defendants’ motions to dismiss the complaint based on plaintiffs failure to present competent medical evidence with respect to causation.

We conclude that the court applied the Frye test too restrictively in refusing to allow plaintiffs expert surgeon and treating surgeon to testify with respect to the issue of causation. Plaintiffs expert surgeon testified that thrombotic events are well known to be associated with angiography and the cardiac catheterization process and that thrombosis of the distal aorta and both femoral arteries are known to have led to a spinal stroke. Similarly, plaintiffs treating surgeon testified concerning the science behind the formation of blood clots as the result[*979] of catheterization and related it to the condition of plaintiff, whose aorta was “totally blocked” with clot and thrombus. Moreover, plaintiffs treating surgeon testified with respect to the mechanism of paralysis, explaining that a growing thrombus can keep blood flow from reaching the back wall of the spine, resulting in stroke and paralysis. He further testified that he has observed actual cases of delayed paralysis and that paralysis can occur up to 27 days after surgery.

As set forth in Frye v United States (293 F 1013, 1014 [1923]), “while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” We conclude on the record before us that the theory of causation set forth by plaintiffs expert surgeon and treating surgeon is not premised on novel science but, rather, is premised on “generally accepted scientific principles and existing data” (Zito v Zabarsky, 28 AD3d 42, 45 [2006]). “Frye is not concerned 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’ ” (Nonnon v City of New York, 32 AD3d 91, 103 [2006], affd 9 NY3d 825 [2007]).

Here, while plaintiffs expert surgeon and treating surgeon concededly did not produce medical literature that documented a prior case study in which cardiac catheterization through the groin was the cause of the aortic thrombosis that led to an acute spinal cord infarct and paralysis, they each laid a foundation for their theories on causation with generally accepted medical principles of vascular medicine and blood supply that are not novel, nor are they even challenged herein. “[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]” (Marsh v Smyth, 12 AD3d 307, 312-313 [2004]). “The fact that there was no textual authority directly on point” with respect to the onset of the events that resulted in plaintiffs paralysis “is relevant only to the weight to be given the testimony, but does not preclude its admissibility” (Zito, 28 AD3d at 46). Moreover, “[u]nlike a newly developed test or process, a theory about the mechanism of an injury will not prompt the profession generally to weigh in with its own studies or publications on the[*980] subject” (Marsh, 12 AD3d at 312). Because the conclusions of plaintiffs expert surgeon and treating surgeon were based on accepted scientific principles involving medicine and the vascular system and were not “based solely upon the experts’] own unsupported beliefs” {id.), the court erred in determining that their testimony with respect to causation was inadmissible based solely upon the fact that there was no medical literature linking a cardiac catheterization in the groin to an aortic thrombosis with a delayed spinal infarct and paralysis.

Finally, we conclude that the court properly refused to admit the proffered testimony of a third expert for plaintiff on the issue of negligence because that expert had not practiced medicine since 1987, approximately 16 years before plaintiffs surgery, and her opinion was based on her conversation with plaintiffs treating surgeon (see generally Matott v Ward, 48 NY2d 455, 459-462 [1979]). Present—Gorski, J.E, Martoche, Centra, Lunn and Green, JJ.