I was recently sent two Orders from the State of New York in which defendant’s motion to bar the introduction of diffusion tensor imaging was denied.  Here is a discussion of the first case with the second to follow.

In the matter of Girgs v. Snapple Distribution Corp., Civil Court of the City of New York, County of Queens Part 30 the defendant moved to preclude the testimony of plaintiff’s medical expert, Michael Lipton, M.D., Ph.D. regarding his assessment of a traumatic brain injury based upon his analysis.  The basis of the motion was due to the plaintiff’s “alleged failure to comply with prior discovery orders wherein defendant sought to obtain various records, data, and information relied upon to reach the results in his report.  Defendant asserted that Dr. Lipton was unavailable and would always be unavailable to turnover his data as it is based on a comparison to individuals who did not waive their privilege under HIPAA.  Plaintiff asserted that discovery had been turned over.

According to the Order, Dr. Lipton performed an MRI of the plaintiff’s brain with results which were interpreted as being “unremarkable.”  Dr. Lipton also reviewed the plaintiff’s MRI with diffusion tensor imaging at which time he performed a quantitative analysis of the fractional anisotropy (“FA”) images from the DTI portion of the examination.  Dr. Lipton opined that this analysis revealed that plaintiff had multiple abnormalities consistent with axonal injury due to traumatic brain injury.

In response, defendant demanded discovery of all data, films, and information on which Dr. Lipton based his findings.  Defendant filed a motion to compel such discovery which was granted to the extent plaintiff was to provide all FA images using DTI, and any and all control values, including but not limited to films and images of the control group relied upon by Dr. Lipton and any other DTI imaging and films.  According to that Order, if plaintiff did not provide the requested information, plaintiff would be precluded from offering trial evidence and testimony from Dr. Lipton regarding the items not produced.

That early order was modified to the extent that defendant was given leave to subpoena the “computer programs and foundational data bases from Montefiore Medical Center and Albert Einstein College of Medicine.”  That early order was again modified to the extent that defendant was to serve a subpoena on Montefiore Medical Center requesting the data/information used for the comparative analysis by Dr. Lipton.

In response to that order, plaintiff turned over to defendant the DTI demographical data and quantitative analysis compiled by Dr. Lipton.  This information contained a number of participants in the control group, age, gender, and FA numbers.

In this most recent decision, the Court found that “since the images comprising the normal data base contained personal identifying information, as well as protected HIPAA information of parties not part of the lawsuit, who had not given consent, there is no legal basis to turnover this information.”  Furthermore, in that defendant’s “expert” Dr. Panasci, M.D. did not allege that he had any expertise in the quantitative analysis of DTI, the Court found that this information was not necessary for his analysis.  Accordingly, defendant’s motion to preclude the testimony of Dr. Lipton was denied.

Defendant then asserted that Dr. Lipton’s testimony should be precluded on the basis that the determinations in his report were not based on the “generally accepted standard” as set forth under Frye. The Court rejected this argument as well finding that the “data and methods relied upon by Dr. Lipton to quantitatively analyze plaintiff’s DTI images had been peer review endorsed by scientific publications including Radiology, Journal of Neuro Trauma, PLOS ONE, and Brain Imaging and Behavior. 

The Court stated: Moreover, to follow the defendant’s argument to its logical conclusion, would lead to an illogical result.  If the Court adopted defendant’s argument, there would not be any introduction of a great deal of generally accepted medical research since this privilege HIPAA information can never be turned over without consent.  Limitations of this type would be a waste of helpful resources and counterproductive to the administration of justice. Thus, defendant’s motion to preclude the testimony of Dr. Lipton based on Frye was denied.