Styles v. General Motors Corp.

Appeal from judgment, Supreme Court, New York County (Donna Mills, J.), entered October 1, 2002, after a jury trial, in favor of plaintiffs in the amount of $5,206,553, held in abeyance, and the matter remanded for a Frye hearing.

Plaintiffs’ decedent sustained fatal injuries when the Chevrolet Suburban SUV in which he was a passenger overturned after being hit by another vehicle. The parties agreed that plaintiffs were without fault in the accident, which happened when the Wiener defendants’ vehicle suddenly crossed a median divider and struck plaintiffs’ SUV head-on, causing it to spin counterclockwise, slide on its side and roll over, eventually coming to rest on its roof, which collapsed on the front passenger’s side. Sharp factual disagreements about the SUV’s crashworthiness were submitted for the jury’s determination including how many times plaintiffs’ vehicle rolled over, how much force was applied to the front passenger roof area, and whether any automobile manufacturer could adequately protect a passenger from the force to which the roof was subjected.

Plaintiffs’ experts conducted a test, composed of two phases, on a single vehicle that was akin to plaintiffs’. First, the windshield was removed and the vehicle was gradually lowered, upside down, at a pitch angle of 16 degrees and a roll angle of 36 degrees onto the junction of the “A pillar” and the roof; after two minutes, when the weight on the junction reached 4,424 pounds, the roof crushed eight inches. Next, the vehicle was lifted and dropped on its roof, at a pitch angle of 0 degrees and a roll angle of 36 degrees, from a height of six inches.

According to plaintiffs’ experts, the first part of the test is substantially similar to the generally accepted Federal Motor Vehicle Safety Standard (FMVSS) 216, promulgated by the National Highway Traffic Safety Administration, pursuant to which a plate is pushed down on the junction of the A pillar and the roof, at a pitch angle of 5 degrees and a roll angle of 25 degrees, for two minutes until a maximum pressure of 1.5 times the vehicle’s weight or 5,000 pounds is reached. Plaintiffs’ experts presented evidence that the angle used in step one of their test is more indicative of the accident, at least under plaintiffs’ theory of what occurred. The variations in the angles in the two tests, and the fact that in plaintiffs’ experiment the vehicle was inverted and lowered, rather than pressed by a plate as in FMVSS 216, do not render plaintiffs’ experiment a novel scientific test within the meaning of Frye v United States (293 F 1013 [DC Cir 1923]). Evidence of experiments is properly admissible so long as the proponent establishes a “substantial similarity between the conditions under which the experiments were conducted and the conditions at the time of the event in question” (People v Laufer, 275 AD2d 655, 655 [2000], lv denied 96 NY2d 785 [2001]), particularly where the opponent has an unrestricted opportunity to cross-examine (see Uss v Town of Oyster Bay, 37 NY2d 639, 641 [1975]). Indeed, plaintiffs presented evidence that, at least in the 1980s, defendant General Motors conducted FMVSS 216-type tests at greater angles than specified in that standard and with the windshield removed.

With respect to the second phase of plaintiffs’ experiment, it is uncontroverted that “drop testing” of vehicles to determine the crashworthiness of roofs is a routine, widely accepted scientific technique. Internal documents of General Motors indicate that the company had contemplated, if not actually conducted, drop tests from a height of SVa feet, at a pitch angle of 0 degrees and a roll angle of 45 degrees, which is substantially similar to plaintiffs’ test. Plaintiffs’ experts explained the reasons for the particular angles and height selected for their experiment, and defendants conducted a thorough cross-examination and presented their own experts.

Although each phase of plaintiffs’ test is, separately viewed, a widely accepted technique, plaintiffs failed to demonstrate that the use of both tests, in combination, on the same vehicle, has gained general acceptance within the pertinent scientific community. It is self-evident that an automobile subjected to two roof-stress tests is more likely to suffer a collapsed roof than a vehicle that undergoes only one such test. Moreover, plaintiffs’ experts did not use the two parts of their test because they did not believe either of the tests alone would exert enough force on the roof; if those experts had, they presumably could have simply increased the pressure or the height of the drop. Rather, plaintiffs’ experts indicated that the two components of their experiment were necessary to reflect different forces and factors of the accident. Translating a roll-over accident into angles of pitch and roll, and dropping and pressurizing, entails scientific matters not within the knowledge of the ordinary juror, and therefore must be demonstrated to be sufficiently established to have gained general acceptance within the scientific community.

Where, as here, the trial court admits expert testimony without conducting a preliminary inquiry into the reliability of the procedures utilized by the experts, the proper course is to hold the appeal in abeyance while the matter is remanded for a posttrial Frye hearing (see People v Roraback, 242 AD2d 400, 406 [1997], lv denied 91 NY2d 879 [1997]). At such a hearing, plaintiffs’ experts would need to establish, inter alia, the general acceptance of their combination of the tests discussed, supra, and substantiate how the precise measurements of angle, weight, height, time, and other components were taken. Plaintiffs’ experts would be limited to discussing the experiment they presented at trial, and would be precluded from offering any new or supplemental tests. Concur—Buckley, P.J., Mazzarelli and Gonzalez, JJ.