Frye Motion Granted

Partners Adam Dlugacz and Daniel Ratner successfully argued that plaintiffs should be precluded from advancing their theory of causation that the infant-plaintiff suffered silent hypoxic-ischemic encephalopathy due to prolonged exposure to forceful uterine contractions on behalf of a major metropolitan Hospital.


In this Bronx County, Supreme Court venued matter, plaintiffs claimed that infant-plaintiff suffered brain damage despite being born with normal APGAR scores and post-birth brain imaging because the mechanism of injury was primarily ischemic, as opposed to hypoxic.  Mr. Dlugacz and Mr. Ratner argued that there was no literature or peer-reviewed studies that supported plaintiffs’ theory of causation and that they should be precluded from advancing it under the Frye/Parker analysis.  In opposition, plaintiffs submitted three expert affirmations and over 1,000 pages of articles to cobble together support for their theory.  The Court held that plaintiffs failed to overcome the defendant’s showing that an infant can suffer silent hypoxic-ischemic encephalopathy in the setting of prolonged exposure to uterine contractions.  Moreover, the Court held that there was no need to hold a Frye/Parker hearing because there was nothing plaintiffs could produce to show support for their theory of causation.