In an important ruling, the New Jersey Supreme Court recently took a big step toward Daubert but failed to embrace it completely. The ruling arose out of a civil mass tort action against the maker of Accutane, a prescription drug for acne. The plaintiffs alleged a causal connection between the drug and Crohn’s disease. The first lawsuits began in New Jersey in 2005. Since then, a number of epidemiological studies have found no such connection. However, the plaintiffs’ experts rejected the studies and, relying on other facts and data, contended a causal connection can be shown. The trial court found the experts’ methodology flawed because the experts did not interpret the relevant data and apply them to the facts of the case as other experts would. The appellate division reversed, and the defendants asked for review by the high court. Among other things, they wanted the court to clarify the expert witness standard, which meant deciding “whether the Daubert standard’s factors would further elucidate our own standard for the admissibility of expert testimony.” The court’s short answer was: “We believe that they would.”
By way of background, the state Supreme Court pointed out that it was “in the vanguard of courts” that decided to switch from the “general acceptance” standard for testing the reliability of scientific expert testimony to a methodology-based approach. Two years later, the U.S. Supreme Court, with its Daubert decision, did the same. But, even though the state’s civil standard and the federal standard “moved in the same direction and toward the same goal,” New Jersey “never adopted Daubert or incorporated the factors identified in Daubert” for the trial court’s use when performing its gatekeeper role, the New Jersey high court explained.
The court’s recent ruling reconciled the state standard for the admission of expert testimony with the federal Daubert standard. “We are persuaded that the factors identified originally in Daubert should be incorporated for use by our courts,” the high court said.
At the same time, the New Jersey Supreme Court stopped short of declaring New Jersey a “Daubert jurisdiction.” The court said it “hesitate[d] to embrace the full body of Daubert case law as applied by state and federal courts,” noting the “discordant views about the gatekeeping role among Daubert jurisdictions.” Moreover, the court said it would adhere to the general acceptance test for reliability in criminal matters.
The New Jersey Supreme Court concluded that in the case at bar the trial court engaged in rigorous gatekeeping when it asked whether the scientific community would accept the methodology the plaintiffs’ experts employed and would use the underlying facts and data as they did. The trial court’s exclusion of the plaintiffs’ experts was well supported and well reasoned, the high court said.
The case is In re Accutane Litig., 2018 N.J. LEXIS 988 (Aug. 1, 2018).