Staking Original Claim, New Jersey Incorporates Daubert Factors

On August 1, 2018, the Supreme Court of New Jersey effectively ended more than 2,000 Accutane lawsuits when it reversed an Appellate Division panel decision that had reversed a trial court’s exclusion of plaintiffs’ expert witness testimony. The case hinged on the admissibility of scientific evidence under the New Jersey Rules of Evidence, and the Court found that plaintiffs’ experts simply did not meet the bar.

Hearkening back to its own pre-Daubert decision in Rubanick v. Witco Chem. Corp., 125 N.J. 421, 449 (1991), the Court emphasized the need for expert theories to be based on “sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.” Saying, “Our law moved first,” the Court saw “not much light” between the New Jersey standard and the federal standards developed under Daubert. While stopping short of declaring New Jersey a “Daubert jurisdiction,” the Court expressly incorporated the original Daubert factors, such as whether a theory has been tested, whether a theory has been submitted for peer review and publication, or whether a theory has attracted widespread acceptance within the relevant scientific community, for use by New Jersey courts in civil cases. Responding to the appellate court’s statement that a reviewing court owes “somewhat less deference to a trial court’s determination[s]” about expert testimony, the Court also reaffirmed that a district court’s decision on admissibility of expert testimony should be reviewed per an abuse of discretion standard.

When evaluating an expert’s claim, the starting filter shapes the view. 

In this case—In re: Accutane Litigation (A-25-17) (079958) (N.J. Aug. 1, 2018)—plaintiffs presented two expert witnesses who collectively dismissed a number of large epidemiologic studies finding no causal relationship between Accutane use and Crohn’s disease, based on challenges to the design and applicability of the studies, paired with anecdotal evidence from case reports and animal studies that suggested a biologically plausible mechanism. At the Kemp hearing, the court heard also from defendants’ two experts, who explained that the epidemiologic studies were the best available evidence and that scientists would not dismiss these studies in favor of case reports and animal studies. The Supreme Court found it important that a party offering expert testimony demonstrate that their experts apply their scientifically recognized methodology in the way that others in the field practice the methodology, and emphasized that it expects trial courts to assess both the methodology used to arrive at an opinion and the underlying data used to support the opinion.

Notably, in the year following his original order excluding plaintiffs’ experts and dismissing 2,076 Accutane cases with prejudice, Judge Nelson Johnson entered an order granting summary judgment to defendants in two cases claiming ovarian cancer was caused by use of talc powder. Brandi Carl and Diana Balderrama v. Johnson & Johnson et al. (ATL-L-6546-14) (N.J. Sept. 2, 2016). There, he found that plaintiffs’ experts ignored a dearth of evidence to demonstrate biological plausibility, relied on lower quality epidemiologic studies, and offered causal conclusions far more definitive than those contained in their own past writings. This order was appealed, without reported resolution.

As the standards governing expert testimony continue to evolve, it is not only the defense bar that seeks to use them. Increasingly, plaintiff counsel mount challenges to defense expert witnesses and their opinions. These motions to exclude can be surprisingly creative, yet often reflect the same weaknesses or distortions presented in the plaintiff expert reports. For example, a very low actual reported complaint rate for a product may be challenged as unreliable and irrelevant, while the reported experience of a few physicians in select patient groups may be highlighted instead. Both sides vie to define the playing field, and this definition can make all the difference. When evaluating an expert’s claim, the starting filter shapes the view. More now than ever, parties must select expert witnesses who bring excellent qualifications to the table, then ensure that their opinions are developed through the same great methods that made their names outside the courtroom.