Key Points

  • The First Department unanimously affirmed the exclusion of the defendants' biomechanical engineering expert under Frye because the defendants did not show that his injury causation analysis was generally accepted in the field of biomechanics.
  • The panel separately held that the expert's opinions rested on assumptions unsupported by the record, including vehicle weights, and that he did not know about the truck's attached construction container or that tape shown in his photographs was not on the car before the accident.
  • The court declined to review the defendants' challenge to the order directing a Frye hearing because no transcript recorded the plaintiff's oral application or any opposition.
  • The $2,000,000 award for past pain and suffering, after a C5-C6 cervical fusion surgery, was held to deviate materially from reasonable compensation under CPLR 5501(c) and reduced to $1,350,000.
  • The plaintiff must stipulate to the reduction within 30 days after entry of the order or face a new trial on past pain and suffering damages.

A New York appeals court on Thursday upheld a Bronx judge's decision to bar a defense biomechanical engineer from testifying about what caused a motorist's spinal injury, but it cut the jury's $2 million award for her past pain and suffering to $1.35 million.

A five-justice panel of the Appellate Division, First Department, ruled unanimously in Larrea v. Sanitation Salvage Corp. in an unsigned decision and order. The panel consisted of Justices Kennedy, who presided, Friedman, Rodriguez, O'Neill Levy and Parker-Raso. The plaintiff, Estela Larrea, must agree to the lower figure within 30 days after the order is entered or face a new trial on that part of her damages.

The ruling leaves the defendants, Sanitation Salvage Corp. and others, without the expert they had sought to put before a jury. The panel held that the defendants had not carried their burden under Frye of showing that the expert's methodology was generally accepted in the field of biomechanics. At the same time, the court found that the jury's figure for past pain deviated materially from reasonable compensation.

The appeal arose from an order of Ben R. Barbato of Supreme Court, Bronx County. That order, entered on or about April 15, 2025, denied the defendants' post-trial motion. The defendants had asked for a new trial on damages because the court precluded their biomechanical engineering expert, or alternatively for the court to set aside the past pain and suffering award and order a new damages trial.

The defendants first argued that the trial court improvidently exercised its discretion by directing their expert to testify at a Frye hearing at all. The panel declined to reach that question, holding that the record on appeal was insufficient. "There is no transcript memorializing plaintiff's oral application or defendants' opposition, if any, before the parties proceeded with that hearing," the court wrote.

On the exclusion itself, the panel held that the trial court "providently exercised its discretion." The defendants, the court wrote, "failed to sustain their burden of demonstrating that the expert's methodology—his own injury causation analysis—was generally accepted in the field of biomechanics." The panel relied on two of its own earlier decisions, De La Rosa v. Nelson Ave. Holdings from 2021 and Knafo v. Mount Sinai Hosp. from 2020.

The court gave a second, independent reason. The panel held that the defendants had also failed to establish that the expert's opinions related to existing data and resulted from a proper application of accepted methodology in this particular case. The expert's own testimony, the court wrote, "established that he relied on assumptions about the accident that were not supported by evidence in the record, such as the weight of the two vehicles."

The decision listed what the engineer did not know. According to the panel, he was unaware of the large metal construction container attached to the truck and of that container's weight. He also did not know the position of Larrea's body, the type of seatbelt and headrest in her vehicle at the time of impact, or her testimony that her vehicle moved about nine feet forward even though her foot was on the brake.

The panel also pointed to the photographs on which the expert based his report. He "did not know that the tape on plaintiff's vehicle, as shown in the photographs he used for his report, was not there before the accident," the court wrote, and he agreed that the tape obstructed the view of some of the damage. "Accordingly, the proposed biomechanical expert's opinion lacked probative value," the panel concluded, citing its 2024 decision in Ruiz v. Losito.

The defendants fared better on damages. Larrea underwent a C5-C6 anterior cervical discectomy interbody fusion, a neck surgery that the decision described as involving "a titanium plate and a plastic cage incorporated with cadaver bone that was affixed with screws." The panel held that the $2 million award "deviated materially from what would be reasonable compensation." The panel cited CPLR 5501(c).

The court did not explain how it arrived at $1.35 million beyond citing earlier First Department awards. It pointed to Dacaj v. New York City Transit Authority, a 2019 decision that found $1 million for past pain and suffering to be reasonable compensation for a 69-year-old plaintiff. It also compared Diaz v. West 197th St. Realty Corp., a 2002 decision involving $900,000 for spinal fusion surgery with rods, screws and a bone graft, with Miranda v. New Dimension Realty Co., a 2000 decision involving $400,000 for multilevel spinal fusion surgery.

The panel modified the order "on the law and the facts" only to vacate the past pain and suffering award, and it otherwise affirmed. Neither side was awarded costs. The decision does not address any other part of the jury's verdict.

Lawyers for the defendants included Thomas Torto of Cheven, Keely & Hatzis. Larrea was represented by Michael T. Altman of The Altman Firm, PLLC.

Under the order, Larrea has 30 days after its entry to stipulate to the reduced award of $1,350,000. If she does not, the case returns to Bronx County for a new trial limited to damages for past pain and suffering. The decision, reported as 2026 NY Slip Op 06575, is uncorrected and subject to revision before publication in the Official Reports.