New Jersey is an outlier. Though nearly 40 states and the federal court system have adopted similar rules governing the admissibility of expert evidence, New Jersey has stuck with an older rule.
In 2015, the New Jersey Supreme Court had the opportunity to bring our state in line with others via the rulemaking process, but said it would rather wait to consider it in the adversarial context of an actual case. The Court now has the opportunity to hear such a case.
Earlier this year, the Appellate Division issued a significant published opinion in the ongoing legal battle over the acne drug Accutane, which would radically alter our state’s standard for expert evidence.
The Appellate Division’s decision all but eliminates the existing, critical, gate-keeping role trial court judges play when expert testimony is offered. This moves New Jersey law in the opposite direction of nearly every other court in the country.
Defendants are appealing to the New Jersey Supreme Court, and a set of amicus briefs have also been filed, urging the Court to take up the case and use its opinion to clarify and modernize our state’s rules governing the admissibility of expert testimony. The briefs present a comprehensive set of perspectives. Leading professors of evidence, corporations representing a wide range of industries, associations representing doctors at both national and state levels, and prominent state level business associations, all argue that the appellate division’s decision would eliminate any meaningful gate-keeping on scientific expert testimony.
This Court Has Many Friends
The significance of this issue is underscored by the interest it has attracted from a wide range of parties not directly involved with the case.
21 New Jersey Corporations
Allergan, Bayer, BASF, Becton, Dickinson & Company, Benjamin Moore, Bristol-Myers Squibb, Celgene, C.R. Bard, Eisai, GAF Materials, GlaxoSmithKline, Honeywell, Merck, Novartis, Novo Nordisk, Pfizer, Quest Diagnostics, Sanofi, Stryker, University Hospital – Newark, and Verizon together employ over 62,000 people in New Jersey.
Their brief identifies the numerous jurisdictions around the country that have barred the very testimony that the Appellate Division held was admissible as a matter of law. They also describe how testimony was rejected by courts outside of New Jersey in Parlodel and silicone breast implant litigation, due to the same flawed methodologies employed by the experts in this case:
- Basing opinions on unreliable sources;
- Cherry-picking data;
- Reaching conclusions contrary to the studies on which they relied, and;
- Presenting opinions inside the courtroom that they were unwilling to express to their peers.
They argue that re-establishing meaningful gate-keeping and clarifying the standards for evaluating expert testimony is essential, because product liability litigation so often turns on the decision to admit or exclude expert testimony. 46% of all companies faced products liability litigation in 2016, and spent over $4 billion on such litigation over the past two years. It is not fair to force companies to defend cases that put low quality evidence before juries.
The Medical Community
National-level healthcare organizations do not typically get involved in state-level litigation, but the American Medical Association, the American Academy of Dermatology, the Society for Investigative Dermatology, and the American Acne and Rosacea Society joined the Medical Society of New Jersey and the Dermatological Society of New Jersey on a brief in support of the Defendants’ request that the Court take up this case because patient care and the ethical standards of the medical community are on the line. These organizations identify how court decisions influence the medical community in significant ways that the New Jersey Supreme Court may not realize.
4 New Jersey Business Associations
The Healthcare Institute of New Jersey, the New Jersey Business & Industry Association, the Commerce and Industry Assertion of New Jersey, and the New Jersey Chamber of Commerce filed a brief reminding the Court of the decades-long history of the debate over expert evidence standards. New Jersey was the first state to emphasize the important gate-keeping role of judges by empowering them to look beyond general acceptance of the evidence being offered, but our state is now an outlier because we have refused to provide more guidance to the lower courts.
Several prominent evidence professors also urged the New Jersey Supreme Court take this opportunity to clarify and strengthen the standard for expert testimony.
Their brief argues that the Appellate Division departed from existing law, and also that existing law provides for less clarity and scrutiny than the standard employed by federal courts and most other states. They urge the New Jersey Court to adopt the federal standard, both because the analysis is more rigorous than the existing New Jersey standard, and because the body of developed case law will provide greater clarity and guidance to the lower courts.
Although New Jersey’s current law governing the admissibility of expert testimony “suggest[s] that New Jersey courts should approach scientific expert testimony much like a Federal court,” the professors note that the two-step process required under the federal Daubert standard is “not clearly enough required by this Court’s decisions, and those steps are critical to assure that an expert’s opinion is reliable.”
The brief argues that scrutinizing both the expert’s factual basis, to determine whether it is sufficient to support the expert’s conclusion, and reviewing the application of a given methodology to determine whether the resulting opinion is reliable, is essential to providing meaningful gate-keeping for expert testimony. It would also discourage forum shopping, decrease transaction costs as experts and lawyers only have to work with one standard, and give our courts a well-established body of case law to draw on in future litigation.
The time is now.
When this organization first petitioned the Court, over a decade ago, to update its rules for expert testimony, the Daubert standard was still relatively new, and the decision of the Court to wait to see whether that standard was met with success and widespread acceptance was understandable. When we most recently requested amendments to the rules for expert testimony, the Court again deferred, expressing a preference to consider the matter in an adversarial context.
The Appellate Division decision has now adopted a standard that would permit any credentialed expert to testify with the mere assertion that their opinion is based on a scientific methodology. The Court now has the opportunity to clarify the appropriate standard to permit meaningful and predictable gate-keeping on expert testimony.
The New Jersey Civil Justice Institute will continue to provide updates as this case progress. If you have questions or comments about this litigation, please contact NJCJI President & Chief Counsel Alida Kass.