September 19, 2018
New Jersey courts and litigants have spent the past month or so facing new arguments in battles over admission of scientific expert testimony, since the Supreme Court handed down a decision entitled In re Accutane Litig., 2018 N.J. LEXIS 988 (Aug. 1, 2018). In this decision, the New Jersey Supreme Court expressly adopted and distilled Daubert factors for the admission of scientific expert testimony. However, this decision does not make New Jersey a Daubert jurisdiction, with the Court stating outright that “[l]ike several other states, we find the [Daubert] factors useful, but hesitate to embrace the full body of case law as applied by state and federal courts.” The Court did, however, expressly adopt and distill the use of Daubert factors in evaluating the admissibility of expert testimony. This will require litigants to meet a higher threshold when offering the testimony of a proffered expert, but is still likely to remain less burdensome than federal law.
Rather than overturning the existing standards for admission of expert testimony, handed down in Landrigan v. Celotex Corp and Rubanick v. Witco Chemical Corp., the Court’s decision in In Re Accutane Litig. purports merely to refine the same standard. The Court set forth four Daubert factors that lower courts will have to consider, but also noted that these factors are “not dispositive or exhaustive,” implying that courts can consider other factors. Nevertheless, those factors are:
1) Whether the scientific theory can be, or at any time has been, tested;
2) Whether the scientific theory has been subjected to peer review and publication, noting that publication is one form of peer review but is not a “sine qua non”;
3) Whether there is any known or potential rate of error and whether there exist any standards for maintaining or controlling the technique’s operation; and
4) Whether there does exist a general acceptance in the scientific community about the scientific theory.
The Court’s decision dealt with a multi-county litigation arising from gastrointestinal injuries – particularly, Crohn’s disease – allegedly sustained from use of a pharmaceutical product, Accutane. At issue were dueling experts, with the defense experts relying on recently-published epidemiological studies which disputed any causal link between Accutane and Crohn’s disease. Plaintiff’s experts disputed the epidemiology studies, relying on their expert’s opinions as to the “biological plausibility” of a general causal link between Crohn’s disease and Accutane, case reports pertaining to individual patients, MedWatch reports correlating use of Accutane and the development of Crohn’s disease, and animal studies demonstrating a temporal relationship between the administration of Accutane and development of gastrointestinal distress in dogs. Plaintiff’s statistical expert disputed the epidemiological studies.
Ultimately, the Court found that the epidemiological studies were reliable, and held that the role of trial courts was to “distinguish scientifically sound reasoning from that of the self-validating expert, who uses scientific terminology to present unsubstantiated personal beliefs.” In requiring courts to enforce this role, the Supreme Court determined that application of the Daubert factors would be helpful. Reliance upon these factors may offer litigants a means of excluding more “novel,” or unfounded, scientific theories from being presented to a jury.
Given the fact that New Jersey’s courts will not be relying upon the body of Daubert case law developed in federal courts and in other state courts, trial courts and appellate courts are likely to be confronted with the task of clarifying application of these factors in the coming years. Nevertheless, corporate defendants have a valuable new argument, and new standards, in fighting to keep unreliable science out of courtrooms.