Shutterstock.com

On Aug. 1, the New Jersey Law Journal ran a headline “Court Axes Accutane Suits, Adopts 'Daubert' Standard for Expert Reports” (by Michael Booth), which was followed on Aug. 10 by a commentary entitled “New Jersey Supreme Court Adopts 'Daubert' 25 Years Later” (by Stephen M. Orlofsky and Ethan M. Simon). To the contrary, the court agreed with the position advanced by amicus New Jersey Association for Justice and refused to “adopt” the Daubert “standard” and the case law interpreting that “standard.” Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993).

In this regard the court stated:

In adopting use of the Daubert factors, we stop short of declaring ourselves a “Daubert jurisdiction.” Like several other states, we find the factors useful, but hesitate to embrace the full body of Daubert case law as applied by state and federal courts.

***

Thus, we do not adopt a “standard” that we cannot fully discern in its application at this time.

In re Accutane, No. 079958, slip. op. at 83–84 (citations omitted) (emphases added).

In reiterating the law governing expert testimony in New Jersey, the decision does not break new ground in terms of how lawyers should approach expert testimony. According to the court, the admissibility of expert testimony on novel scientific theories will still be judged on the reliability of the expert's methodology and data in the context of a Kemp N.J.R.E. 104 hearing. In re Accutane, slip. op. at 66; Kemp ex rel. Wright v. State, 174 N.J. 412 (2002). The court thus reviewed and reinforced the trial court's gatekeeping role.

In its decision, the court went out of its way to point out how New Jersey led the way to a more relaxed medical causation standard long before the Daubert decision. Id. at 55. According to the court, New Jersey “modified the general acceptance standard to adopt a more relaxed approach for causation expert testimony in toxic tort litigation, and later for all medical cause-effect expert testimony ….” Id. at 67. Even with that relaxed standard, however, the court emphasized that the trial court still needs to ensure that the methodology used by the expert is reliable and to exclude net opinions. Like Rubanick and Landrigan, the court recognized that Daubert also underscored that the “trial court must focus on the expert's principles and methodology—not on the conclusions they generate.” Id. at 61 (citation omitted); Rubanick v. Witco Chemical Corp., 125 N.J. 421 (1991); Landrigan v. Celotex Corp., 127 N.J. 404 (1992).

Although the Supreme Court stated that a trial court may consider the factors set forth in Daubert, that is nothing new as trial and appellate courts have been evaluating the same factors for decades. See id. at 82 (“Several [Daubert factors] are aimed at achieving the same examination for peer acceptance of a methodology (but not the outcome reached from that methodology) described in our earlier opinions.”) (citing Landrigan, 127 N.J. at 417; Rubanick, 125 N.J. at 449–50). According to the court, the Daubert factors are not “necessary or definitive.” Id. at 82; see also, e.g., id. at 81 (describing Daubert factors as “a non-exhaustive list” and “not dispositive or exhaustive.”), id. at 70 (use of Daubert factors is “permissible”). Thus, not every Daubert factor will necessarily apply in an expert challenge (i.e., a methodology may not have an “error rate”), and there may be other ways (outside the four factors presented) to demonstrate that a methodology is reliable. Id. at 63 (emphasizing that the U.S. Supreme Court has explained that “the Daubert factors do not necessarily apply 'to all experts or in every case'” and thus granted trial courts “broad latitude” when deciding how to determine reliability as “the Daubert factors are not a 'definitive checklist or test.'”).

In rejecting the premise that New Jersey is now a “Daubert jurisdiction,” the court cautioned against reaching outside of New Jersey for decisions interpreting Daubert. According to the court:

[T]here is no monolithic body of case law uniformly or even consistently applying Daubert, as others have noted. We hesitate to sweep in adherence to the various approaches taken among the circuits and state jurisdictions when applying the Daubert factors …. While the [Daubert] factors are helpful, and while individual cases may be persuasive in appropriate settings, we cannot ignore that there are discordant views about the gatekeeping role among Daubert jurisdictions.

Our view of proper gatekeeping in a methodology-based approach to reliability for expert scientific testimony requires the proponent to demonstrate that the expert applies his or her scientifically recognized methodology in the way that others in the field practice the methodology.

Id. at 83–84 (citations omitted).

As applied to the Accutane cases at issue, the court was persuaded that the trial court did not abuse its discretion in excluding the plaintiffs' experts for what it perceived to be lopsided proofs against causation. The plaintiffs' experts relied heavily on animal studies and case reports, which according to the court was contradicted by eight of the nine published epidemiological studies finding no causation. The court explained, “we do not mean to suggest that animal studies and case reports can never be relied upon for forming an opinion on causation,” however, in the present case it found “ample support for the trial court's determination that it was not proper to do so here in light of the uniform body of epidemiological evidence.” Id. at 74–75. The plaintiffs' experts' attempt to explain the published epidemiology by pointing out the flaws in those studies did not persuade the trial court, which the Supreme Court refused to overturn as an abuse of discretion. Id. at 79.

The most significant holding of the court was arguably not the discussion of Daubert factors, but rather its affirmance of the abuse of discretion standard. As the court explained, “We now reaffirm 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.” Id. at 72. In effect, the decision places a tremendous amount of power in the trial court whose decision will only be overturned for an abuse of discretion.

While not breaking new ground, cases involving difficult medical causation issues are not made easier by this decision. Lawyers on both sides need to continue to pay attention early on to the methodologies employed by experts. Peer review of the methodology used by experts, while not essential, continues to be important particularly with evolving science concerning medical causation. Id. at 81 (“publication is one form of peer review but is not a 'sine qua non'”). In this regard, the court pointed out “as the [trial] court noted and found to be compelling, [plaintiffs' expert] never submitted his ideas concerning biological mechanism or Accutane's relation to Crohn's disease for peer review or publication.” Id. at 77.

On the flip side, it may be argued that the decision is helpful to plaintiffs seeking to exclude defense experts who are focused solely on rebutting plaintiff experts without an adequate foundation to do so. Whatever your perspective, this decision and its precedent require an early and careful evaluation of the methodologies employed by experts, which may become the fulcrum between winning and losing. But before standing up in court and declaring New Jersey is a “Daubert jurisdiction,” practitioners are cautioned to actually read the decision.

Christopher M. Placitella is a shareholder and Jared M. Placitella is an associate of Cohen, Placitella & Roth, which has offices in Red Bank and Philadelphia. Both appeared as counsel for amicus curiae New Jersey Association for Justice (NJAJ) in In re Accutane, No. 079958, and Christopher Placitella argued on behalf of NJAJ before the Supreme Court.