We had more good news coming out of the New Jersey Supreme Court this morning in the other Accutane appeal that was heard earlier this year. Today’s decision addressed the applicability of New Jersey’s Product Liability (PLA) to Accutane claims consolidated in MCL in Atlantic County, and the adequacy of Roche’s warning label under the PLA.
The Court held that New Jersey has the most significant interest with respect to the MCL cases and the PLA therefore applies to all cases consolidated in the MCL: “New Jersey’s interest in consistent, fair, and reliable outcomes cannot be achieved by applying a diverse quilt of laws to so many cases that share common issues of fact.” This is a reasonable rule that enhances predictability for litigation brought by out-of-state plaintiffs against New Jersey-based businesses.
We are also pleased to see the Court affirm the strength of the PLA adequacy of warning, which requires a heightened standard of “clear and convincing” evidence that a label warning is inadequate, and find that Roche’s warnings were adequate as a matter of law.
Today’s decision affirms the primacy of the federal regulatory process in adequacy of warnings, and ensures that our state’s pharmaceutical companies will continue to enjoy the protection of the PLA from unmeritorious product-liability litigation from out-of-state residents.
This is yet another New Jersey Supreme Court decision to uphold Superior Court Judge Nelson Johnson’s analysis in the ongoing Accutane litigation. Earlier this year, Judge Johnson’s careful scrutiny of flawed expert testimony was ultimately vindicated in a decision that formally aligned New Jersey’s standard with the federal Daubert standard, consistent with repeated arguments by NJCJI.
Judicial gatekeeping on expert testimony is often discussed as a concern about junk science – with an implication that anything not plainly lacking in scientific basis is a mere question of persuasiveness that should therefore go to the jury. The New Jersey Appellate Division recently took that concept to its extreme conclusion, holding that whenever a well-credentialed expert relies on some sort of scientific data and can offer an explanation for his conclusions, that testimony must be admitted, no matter the methodological flaws. Those flaws go merely to the strength of the testimony, the panel determined, and weaknesses can be exposed on cross examination and countered by other experts. As a result, the trial judge’s studied judgment to bar flawed expert testimony in the ongoing In re Accutane Litigation was reversed.
In a brief filed this week in the New Jersey Supreme Court, we argue that focus on “junk science” is misplaced, and in fact has it backwards. Identifying obvious “junk science” may be relatively easy for a jury. Where judicial gatekeeping is most critical, and where flawed expert testimony is most dangerous, is rather where a well-credentialed expert presents an interpretation of the underlying data based on flawed methodology that jurors are ill-suited to evaluate.
What Do Juries Do Best?
Juries function best when evaluating credibility of ordinary witnesses, aided by the adversarial process. Inconsistencies can be revealed through cross-examination; erroneous and false testimony can be countered by opposing witnesses. Jurors can then arrive at their own conclusion as to whether the stop light was red or green.
But jurors are more easily misled when presented with competing interpretations of scientific data. Studies demonstrate that jurors struggle to make methodology-based distinctions when evaluating expert testimony. Juries presume the legitimacy of admitted evidence, and do not reliably distinguish between low and high-quality evidence. And the adversarial process does not effectively assist jurors in recognizing flaws in expert testimony, in part because jurors lack the opportunity to delve into the underlying studies to make their own critical evaluations.
What Judges Do Better
Judges, by contrast, have the opportunity to immerse themselves in the relevant studies and make meaningful inquiries into the methodological soundness of proposed testimony. Especially in the case of MCL judges, they even have the opportunity to develop some familiarity with the type of scientific and technical disputes that occur frequently in medical causation cases. Of course, as part of that evaluation, judges must also justify their decision – and their analysis is more readily reviewable on appeal, further enhancing both accuracy and predictability.
The focus on “junk science” therefore gets it precisely backwards. A standard that would permit well-credentialed experts to offer “plausible explanations” would eliminate judicial gatekeeping in those cases where jurors are least equipped to assess scientific validity and methodological soundness, and where judges’ comparative advantage in evaluating complex scientific theories highest.
The solution is to adopt a standard that is not limited to a screen for well-qualified experts opining on scientific data, but that requires rigorous judicial scrutiny of the analytical process itself, and that provides trial court judges reliable guidance in their gatekeeping responsibilities. Adopting the Daubert standard to expressly align New Jersey courts with the prevailing standard in federal courts and vast majority of other state courts would provide New Jersey judges with effective guidance on thorny methodological issues and ensure predictable and robust judicial gatekeeping in New Jersey state courts.
A selection of the need-to-know civil justice news for December 9-15.
Nicholas Pugliese | NorthJersey.com
Gov.-elect Phil Murphy on Tuesday announced the Bergen County prosecutor as his nominee for state attorney general and vowed that his pick will lead the fight against the Trump administration on issues ranging from health care to voting rights and the environment.
Jeannie O’Sullivan | Law360
The New Jersey Supreme Court reinstated a medical malpractice lawsuit against Newark Beth Israel Medical Center that had been tossed over the late submission of an expert witness’ statement, ruling on Thursday that the parties had been entitled by law to a conference to discuss any concerns about the testimony.
Jeannie O’Sullivan | Law360
The New Jersey Supreme Court on Monday ruled that an employment contract barring third-party lawsuits wasn’t enforceable under the state’s workers’ compensation law because it contravenes public policy, but a trial court must still determine if the suing employee was partially liable for the injury that prompted his suit.
Bill Wichert | Law360
Hoffmann-La Roche Ltd. has convinced the New Jersey Supreme Court to review two state appellate decisions related to the company’s acne medication Accutane, with the justices agreeing to consider rulings over the adequacy of the drug’s label and the admissibility of expert testimony.
The New Jersey Court System has over 40 committees that help it develop and implement new policies through the court’s rulemaking process. Right now, the court is looking for volunteers to serve on seven committees for the 2018-2020 term.
1. Arbitration Advisory Committee
2. Civil Practice Committee
3. Committee on Jury Selection in Civil and Criminal Trials
4. Committee on Model Civil Jury Charges
5. Special Civil Part Practice Committee
6. Committee on the Tax Court
7. Committee on Women in the Courts
These committees strive to be as inclusive and collaborative as possible, but in the grand scheme of things, the people who are going to have a say in what the court’s committees do, are the people that volunteer to serve on them.
Any attorney interested in being considered by the Court for possible appointment, either to any of these specific committees or generally, can submit an application at the following site: http://www.judiciary.state.nj.us/sccms/onlinemembership/
NJCJI strongly encourages our members and supporters to apply for appointment to any committee they are interested in serving on.
A selection of the need-to-know civil justice news for October 21-27. Continue reading
Contract work blurs the traditional definitions and roles of employee and employer, and this evolution of the labor market has created tension between contract law and employment law. The New Jersey Supreme Court has taken up a case that arises out of that evolution. It is deciding whether contract employees can be required to waive tort claims they might bring against a contract employer when Workers Compensation is available from their direct employer. We filed an amicus brief in this case arguing that making the Workers’ Comp model compatible with the modern economy requires that such arrangements be upheld. Continue reading
NJCJI President & Chief Counsel Alida Kass is quoted in the Law Journal on the importance of the New Jersey Supreme Court’s recent opinion in the closely-watched drink price cases.
“You have courts looking to the New Jersey Supreme Court for guidance and I think that is what they’ve provided here. They’ve begun providing some meaningful guidance as to how this statute should be interpreted. That’s really helpful to litigants on both sides. It should provide more information about what cases are worth,” she said.
The New Jersey Supreme Court’s ruling in a couple of lawsuits over drink prices is making headlines across the state because of the impact it will have on other Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA) cases. In Law360, Alida Kass, NJCJI’s President & Chief Counsel, highlighted the court’s determination that “for class purposes, each plaintiff must prove individually he is an aggrieved consumer — it is not enough to show some generic violation against the general public.”
A selection of the need-to-know civil justice news for October 7-13. Continue reading