The Supreme Court of New Jersey has finally adopted the Daubert factors for assessing the reliability of expert testimony and reaffirmed the trial court’s duty to engage in “rigorous gatekeeping” when adjudicating whether an expert opinion is admissible.
In re: Accutane Litigation involved allegations that the prescription cystic acne medication caused Crohn’s disease. Despite numerous epidemiological studies finding no association b, plaintiff’s expert gastroenterologist relied on suspect data, animal studies and his own unique theory of biological plausibility to opine that Accutane can, in fact, cause Crohn’s disease.
The trial court concluded that there wasno epidemiological evidence establishing a causal link between Accutane and Crohn’s disease, and that plaintiff’s expert report was conclusion driven. The Appellate Division reversed, concluding that plaintiff’s expert relied on methodologies and data of the type reasonably relied upon by comparable experts which wasthe standard in New Jersey for the admission of expert opinions. It also held that it owes less deference to the trial court when making a determination on whether to admit or exclude an expert opinion.
New Jersey’s Supreme Court explicitly rejected the Appellate Division’s heightened standard of review and reaffirmed “that the abuse of discretion standard applies in the appellate review of a trial court’s determination to admit or deny scientific expert testimony on the basis of unreliability in civil matters.”
The Supreme Court made clear that trial courts must “assess both the methodology used by the expert to arrive at an opinion and the underlying data used in the formation of the opinion”. Trial courts are now instructed to consider Daubert’s non-exhaustive list of factors when assessing the reliability of expert testimony:
- Whether the scientific theory can be, or at any time has been, tested;
- Whether the scientific theory has been subjected to peer review and publication, noting that publication is one form or peer review but is not a “sine qua non”;
- Whether there is any known or potential rate of error and whether there exists any standards for maintaining or controlling the technique’s operation; and
- Whether there does exist a general acceptance in the scientific community about the scientific theory.
Applying this standard, the Court determined 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.”
Requiring trial courts to take their gatekeeping role seriously in NJ has been long overdue since defense counsel often seek to exclude a plaintiff’s expert report. It is not uncommon for a report to be stricken, but then reinstated by the appellate division which has used New Jersey’s liberal standard for the admission of expert opinions. The Supreme Court has now made clear that the trial court’s determination on these issues is owed deference by the trial court, just like any other evidence determination.
Thanks to Michael Noblett for his contribution to this post.