The New Jersey Supreme Court has adopted a new evidentiary standard to evaluate the admissibility of scientific evidence. While expanding the guidelines to consider Daubert factors in determining the admissibility of expert testimony, the Court did not embrace the full body of Daubert case law as applied by 39 other state and federal courts. Daubert v. Merrill Dow Pharms., Inc. 509 U.S. 579 (1973), N.J.R. Evid. 702.
The ruling was reached in a products liability case involving a prescription drug, Accutane, used for the treatment of acne. Consumers, 93% of whom were out-of-state residents, brought products liability actions against the NJ developers of the drug, alleging that the drug caused Crohn’s disease. In Re Accutane Litigation, Nos. A-25, ___ NJ___, 2018 WL 3636867 (NJ 2018), Decided August 1, 2018.
The NJ Supreme Court ruled that the methodology used by the consumer’s experts was unreliable and therefore their testimony was inadmissible. In reaching the decision the Court mandated that a judge could use the Daubert factors regarding unreliability; however, it did not impose the requirement that the full body of Daubert case law be incorporated into the court’s evaluation.
Over the years NJ standard for the admissibility has evolved from the Frye test established in the Federal Court of Appeals. The Frye test required that for expert testimony to be admitted it must have gained “general acceptance” in the particular field. Frye v. United States, 293 Fed. 1013 (App. D.C. 1973).
“The Supreme Court then adopted a reliance-based standard of admissibility which permits the admission of expert testimony based upon the expert's methodology. In toxic substance litigation, the court has departed from the traditional test governing the admissibility of expert testimony. Even if the causation has not yet reached general acceptance, it may be found to be sufficiently reliable for admissibility if it is based upon sound scientific methodology that involves data and information of the type reasonably relied upon by experts in the particular field, and if such scientific knowledge is offered by an expert who is sufficiently qualified by either education, knowledge, training or experience in the particular field of science. The court further determined that the expert must possess a demonstrated professional capacity to assess the scientific significance of the data and information and to explain the bases for the opinion reached.” Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC 26.4 Medical Experts—Admissibility of scientific evidence (Thomson-Reuters 2018).
The NJ reliance-based standard of admissibility guideline for the admissibility and reliance on scientific evidence was applied in NJ occupational disease litigation. In Lindquist, the NJ Supreme Court stated, “scientific causation that had not reached general acceptance may be found to be significantly reliable if it is based upon sound, adequately-funded scientific methodology involving data and information of type reasonably relied on by experts in the scientific field.” In Lindquist, the trial court took judicial notice of scientific articles that were not admitted into evidence at trial. The NJ Supreme Court reasoned that they were trustworthy of novel scientific theories. Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244, 814 A.2d 1069 (2003).
In Accutane, the NJ Supreme Court affirmed the decision of the trial court barring the scientific evidence offered by the consumers’ expert. It reasoned that the experts had deviated from core scientific principles. Justice LaVecchia, writing for the Court, stated, ”In sum, the trial court explained its reasons for concluding that plaintiffs' experts deviated from core scientific principles and strayed from their own claimed methodology in order to reach their conclusions. That the trial court deemed their testimony to be unreliable and excluded it from being presented is unsurprising. Ample evidence in the record supports that conclusion. Applying the abuse of discretion standard and the principles of Rubanick, Landrigan, and Kemp, we conclude that the trial court's determination is unassailable. The Appellate Division judgment, reversing the trial court's exclusion of the expert testimony, is reversed.” Rubanick v. Witco Chemical Corp., 125 N.J. 421, 593 A.2d 733 (1991).
Going forward the admissibility of scientific evidence in workers’ compensation occupational disease litigation will be held to a stricter standard. Expert testimony that is based on unreliable and based on flawed science will not be admissible into evidence. New Jersey’s rules of evidence now require that the Court evaluate scientific methodology criteria that have been developed under the stricter federal Daubert standard.
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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).
