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August 7th, 2018

New Jersey Supreme Court Pumps the Brakes on ‘Junk Science’ and Adopts the Daubert Standard of Expert Testimony

At long last, New Jersey will no longer be considered an evidentiary outlier that permits plaintiff’s to bring meritless cases based on junk science. On August 1, 2018, the Supreme Court of New Jersey joined the vast majority of other states and adopted the Daubert standard for assessing the reliability of expert testimony.

The decision was highly anticipated by both trial lawyers and business advocacy groups who have spent years battling in New Jersey state courts. Up until now, New Jersey’s status as hometown to many pharmaceutical companies coupled with its lenient standard of admissibility made it a haven for plaintiffs lawyers to bring meritless product liability claims.

In re Accutane Litigation was the consolidation of over 2,000 cases in which plaintiffs claimed a causal connection existed between Hoffman La Roche’s nodular acne medication, Accutane, and Crohn’s Disease, a gastrointestinal illness. This argument was made despite the fact that out of all the published epidemiological studies, not one found a causal relationship between Accutane and Crohn’s disease.

In order to overcome this small hurdle, Plaintiff’s found two “experts” who were willing to testify that they believed the epidemiological studies to be unreliable, and that a causal relationship could be shown using other forms of evidence, such as animal studies.

The defendants then produced evidence and testimony that epidemiological studies were preferred to animal studies­—especially dog studies because dogs cannot get inflammatory bowel diseases—the cause of Crohn’s disease is unknown, and scientists “would not ignore the available epidemiological evidence in favor of a hypothesis about a biological mechanism that has not been submitted for peer review.”

The trial court agreed, and excluded the plaintiff’s experts’ testimony because it was a “conclusion-driven” attempt to cherry-pick supportive evidence while dismissing more reliable evidence. The appellate court panel then reversed the decision because they did not believe the negative reaction to the plaintiff’s experts was supported by the record, and that they were permitted to give “somewhat less deference” to determinations of expert testimony.

The Supreme Court of New Jersey decided to review the decision and provide greater clarity and guidance on the gatekeeper role of trial courts. Using the proper standard, the Court found the “clear result” was that the trial court correctly excluded the testimony.

“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.”

The Court explicitly adopted the factors set forth in Daubert for evaluating the reliability of expert testimony in order to aid courts in their role as gatekeepers. After all, “[t]hose are not credibility determinations that are the province of the jury, but rather legal determinations about the reliability of the expert’s methodology.” Finally, the Court reaffirmed the proper standard of review as abuse of discretion.

 

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