On August 1, 2018, the New Jersey State Supreme Court handed down a landmark decision when they unanimously voted to adopt stricter standards for expert testimony, affirming the court’s role as the “gatekeeper of scientific evidence”.
Expert Testimony Properly Excluded
The court’s ruling is a direct result of ongoing litigation surrounding claims that the prescription acne medicine Accutane causes Crohn’s disease. In contrast to numerous epidemiological studies that show no casual link, plaintiffs’ experts asserted that Accutane does in fact cause Crohn’s disease, citing case studies and animal literature. In a pretrial evidentiary hearing, this testimony was dismissed on the grounds that the plaintiff’s experts “cherry-picked” evidence to support their opinion. In July of 2017, an appellate court reversed that decision. However, on August 1st, the New Jersey State Supreme Court held that the trial court acted appropriately when excluding plaintiff’s expert testimony.
The Bigger Picture
While a win for Accutane maker Hoffman La Roche, the August 1st decision impacts New Jersey’s standard for assessing the reliability of expert witnesses in civil cases. Unlike federal and most state courts, New Jersey never adopted the more stringent framework for expert testimony outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), instead favoring the more relaxed standard set in Frye v. United States, 293 F. 1013 (1923). Now, the onus is placed on expert witnesses to demonstrate that their opinions are supported by reliable and valid scientific evidence.
While New Jersey has not officially declared itself a Daubert jurisdiction, in the court’s decision, Justice Jaynee LaVecchia wrote: “There is little distinction between Daubert’s principles regarding expert testimony and New Jersey’s, and Daubert’s factors for assessing the reliability of expert testimony will aid New Jersey trial courts in their role as the gatekeeper of scientific expert testimony in civil cases.”
Further, when analyzing the reliability of scientific evident the court must consider whether or not:
1. the science has been or can be tested
2. the science has been subjected to peer-review and publication
3. there is any potential rate of error or any standards for maintaining or controlling the technique’s operation
4. the science is generally accepted in the scientific community
No More Junk Science
In an earlier blog post, we wrote on the dangers of junk science in the courtroom, that is “science” built on faulty or fraudulent reasoning. Moving forward, New Jersey judges must carefully weigh the strength of the scientific evidence when deciding what is and is not admissible in toxic tort and medical litigation. The August 1st ruling will have a significant effect on other New Jersey mass torts where plaintiff’s offer opinion linking illness or injury to environmental exposure or chemical substances, including pharmaceutical cases, asbestos litigation, and talc litigation. On August 6, 2018, the U.S. District Court for the District of New Jersey and the judge overseeing the talc litigation docket, set a Daubert hearing for June 2019.
We have re-released the talc sections of our 2016 report in light of the burst in legal activity. Complete the form below to download a complimentary copy of the talc sections of the report.