The New Jersey Supreme Court recently issued a decision in In re Accutane Litig., to reinstate a trial court’s order to strike the plaintiffs’ causation experts’ testimony as flawed and unreliable. The case has significance because the Court clarified the state’s expert witness admissibility standards to include the factors set out in Daubert.
With this development, expert testimony in New Jersey that lacks credible support has little chance of surviving a motion to strike.
The first Accutane-related lawsuits were filed in the early 2000’s. These actions alleged that the prescription drug used in the treatment of nodular acne caused the gastrointestinal disorder Crohn’s disease. However, recent epidemiological studies found that Accutane wasn’t causally linked to the development of Crohn’s disease.
In the midst of this recent case, the plaintiffs tried to offer expert testimony to discredit those studies. Their gastroenterology expert explained why he found these studies unreliable and uninformative regarding causation. He also explained his reliance on other forms of evidence such as case reports, animal studies, causality assessments, and his own biological mechanism hypothesis. He further opined that the unfavorable epidemiological studies failed to consider Crohn’s disease’s prodrome—the time between the onset of symptoms and actual diagnosis.
In addition, Plaintiff’s statistician expert opined that failing to account for this prodrome rendered the studies statistically unreliable.
Defendants replied with a motion to exclude the expert testimony, arguing that the evidence fell below the minimum threshold for the admissibility of scientific expert testimony in New Jersey. They produced a gastroenterologist and a biostatistician. The gastroenterologist’s testimony focused on disputing Plaintiff’s gastroenterologist’s testimony and explaining why epidemiological studies are preferred to case reports and animal studies in the hierarchy of evidence. The gastroenterology expert further opined that Plaintiff’s gastroenterologist’s methodologies and hypothesis were untested and logically unsound because, inter alia, the animal studies that he spoke of were conducted on species that couldn’t contract an inflammatory bowel disorder (IBD) such as Crohn’s disease.
Finally, she addressed Plaintiff’s gastroenterologist’s interpretation of Defendants’ animal studies. She stated that animal studies may sometimes be important for “generating certain hypotheses,” but that they are typically considered below human studies in the hierarchy of medical evidence. She noted that it is difficult to extrapolate data from animals to humans because of differences in metabolism, absorption, and other factors.
Defendants’ statistician expert’s testimony focused on why the epidemiologic evidence is the best available evidence on the question of Accutane’s causal relation to Crohn’s disease and why a meta-analysis was a proper way of pooling those study results to reach a conclusion that Accutane doesn’t cause Crohn’s disease.
After the hearing, the trial court excluded plaintiffs’ experts’ testimony. The court said the standard established in Rubanick v. Witco Chemical Corp. (N.J. 1991) required an expert opinion to be based on a “sound, adequately-founded scientific methodology involving data of the type reasonably relied on by experts in the scientific field.” The trial court found Plaintiffs’ experts’ testimony lacking, determining their examination of the evidence was a “conclusion-driven” attempt to “cherry-pick” evidence supportive of their opinion while dismissing better forms of evidence that didn’t support it.
However, the Appellate Division reversed. While noting the trial court’s opportunity to view the witnesses firsthand, the panel expressed the view that the trial court’s negative reaction to Plaintiffs’ experts wasn’t supported by the record. The appellate panel further noted that, although a trial court’s decision to admit or exclude evidence is subject to an abuse of discretion standard, a reviewing court owes “somewhat less deference” to determinations regarding expert testimony.
The New Jersey Supreme Court granted certification to address whether the trial court properly excluded plaintiffs’ experts’ testimony, whether the Appellate Division employed the correct standard in reviewing that decision, and whether New Jersey’s standard for assessing the reliability of expert witnesses is in need of clarification. On the last issue, the Supreme Court considered whether the factors set forth in Daubert would further “elucidate” New Jersey’s standard for the admissibility of expert testimony.
The New Jersey Supreme Court reinstated the trial court’s decision to exclude the plaintiffs’ expert testimony. The Court found that “[t]here is little distinction between Daubert’s principles regarding expert testimony and New Jersey’s, and Daubert’s factors for assessing the reliability of expert testimony will aid New Jersey trial courts in their role as the gatekeeper of scientific expert testimony in civil cases.”
As a result, the Court reconciled the standard under N.J.R.E. 702, and relatedly N.J.R.E. 703, with the federal Daubert standard to incorporate its factors for civil cases. The Court stated, “[w]e intend by this case to clarify and reinforce the proper role for the trial court as the gatekeeper of expert witness testimony.”
While not explicating adopting Daubert, the New Jersey Supreme Court held that “the factors identified originally in Daubert should be incorporated for use by our courts.”
The Court rejected the Appellate Division’s reliance on the more-relaxed Frye standard, which the Rubanick decision explained requires only that expert testimony is generally accepted in the applicable scientific community.
In adopting use of the Daubert factors, the New Jersey Supreme Court said it “stop[ped] short” of declaring itself a “Daubert jurisdiction.”
Like several other states, the Court said, it finds the factors “useful,” but it “hesitate[d] to embrace the full body of Daubert case law as applied by state and federal courts.”
In this case, the Supreme Court held that the trial court properly excluded Plaintiffs’ experts’ testimony. Further, the Court reaffirmed that the abuse of discretion standard must be applied by an appellate court assessing whether a trial court has properly admitted or excluded expert scientific testimony in a civil case. The trial court here didn’t abuse its discretion in its evidential ruling; therefore, the Appellate Division erred in reversing the trial court’s exclusion of the testimony of Plaintiffs’ experts.
While the New Jersey Supreme Court can’t be considered a “Daubert state,” this swing towards the Daubert factors in civil medical-causation actions is a meaningful result that must be followed in negligence, product liability, and other tort claims in the state.
In re Accutane Litig., 2018 N.J. LEXIS 988, 2018 WL 3636867 (N.J. August 1, 2018)