Legal Alert: Another State Supreme Court Adopted Heightened, “Daubert-Lite” Standard For Expert Witnesses
In a unanimous decision coming out of the New Jersey Supreme Court on August 1, 2018, the state’s highest court expressly adopted a heightened standard for the admissibility of expert testimony. In In re: Accutane Litigation, No. A-25-2017-079958, the case before the court centered on the admissibility of expert testimony proffered by the class of plaintiffs – which consisted of more than 2,000 claimants – alleging a causal connection between the acne treatment drug Accutane and Crohn’s disease, a chronic bowel illness. The proposed expert testimony was in direct conflict with a number of recent epidemiological studies that have been published, all concluding that there is no causal relationship between Accutane use and the development of Crohn’s disease.
In its sea-change decision, the Court addressed three issues: first, whether the trial court properly excluded plaintiffs’ experts’ testimony; second, whether the correct standard was applied; and finally, whether New Jersey’s standard for assessing the reliability of expert witnesses is in need of clarification.
First, the Court observed that New Jersey was one of only a handful of states that had yet to adopt the three-factor test for the admissibility of expert testimony that was incorporated in Federal Rule of Evidence 702 in response to the United States Supreme Court’s seminal decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny. To that end, the Court recognized that New Jersey’s trial courts “can and should have more clear direction…on how the gatekeeping function is properly performed,” and endeavored to do so with its opinion in this case.
The Daubert standard, which is recognized as the consensus majority rule among jurisdictions nationwide, defines the scientific methodology criteria that experts must meet, taking into consideration such factors as whether the theory has been subjected to peer review, whether the theory can be tested, and – most importantly – whether the theory has been generally accepted in the scientific community. The Court stressed that the adoption of these factors was not inconsistent with New Jersey’s approach to determining the admissibility of expert testimony, observing:
Importantly, both our law and the Daubert trilogy are aligned in their general approach to a methodology-based test for reliability. Both ask whether an expert’s reasoning or methodology underlying the testimony is scientifically valid. Moreover, both standards look to whether that reasoning or methodology properly can be applied to facts in issue.
Because it found little distinction between the Daubert principles and New Jersey’s own standards for its “gatekeeping” function, the Court determined that the Daubert standard should be incorporated for use by its courts as a “guide for our courts to consider when performing their gatekeeper role concerning the admission of expert testimony.”
The Court, however, stopped short of adopting the Daubert standard in its entirety, instead holding that “like several other states, we find the factors useful, but hesitate to embrace the full body of Daubert case law as applied by state and federal courts.” Notably, the Court expressed hesitation with the various views regarding the gatekeeping role of the trial courts that have been adopted by Daubert jurisdictions and held that, in New Jersey, the “proper gatekeeping in a methodology-based approach to reliability for expert scientific testimony requires the proponent to demonstrate that the expert applies his or her scientifically recognized methodology in the way that others in the field practice the methodology.”
Applying its hybrid, or “Daubert-lite,” approach to the facts of the case, the Court upheld the exclusion of the “expert” testimony. Specifically, the Court cited approvingly the trial court’s consideration of whether the scientific community would accept the methodology employed by the plaintiffs’ experts, holding that “the trial court did the type of rigorous gatekeeping that is necessary when faced with a novel theory of causation, particularly one, as here, that flies in the face of consistent findings of no causal association as determined by higher levels of scientific proof.”
In application, this decision will have an immediate and significant impact in the products liability arena in New Jersey, which has long been a forum favorite of plaintiffs’ attorneys because of its relaxed evidentiary threshold standards. Plaintiffs’ experts will now be required to present theories that are recognized as scientifically-sound by others in the community – as opposed to the “novel” theories of causation underlying this case – in order to advance a products liability action in New Jersey, which brings the Garden State in line with the majority of other jurisdictions across the country and likely dampens the enthusiasm with which plaintiffs’ attorneys have approached New Jersey as a forum in their mass tort cases. Perhaps more importantly, there is a good chance this decision will act as a trend-setter and impact courts in the minority of states that have not yet adopted Daubert.
Authored by Partners Nick Panayotopoulos and Alan Holcomb and law clerk Chris Kelleher.
This alert provides a general overview of recent legal developments. It is not intended and should not be relied upon as legal advice.