New Jersey Supreme Court Holds That Daubert Factors Apply to Evaluating Expert Testimony in Civil Cases

Lauren E. O’Donnell

On August 1, 2018, the New Jersey Supreme Court held that civil trial courts should look to the factors set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), in assessing the reliability of expert testimony. The opinion—In re: Accutane Litigation—adopted the Daubert factors, but specifically stopped short of declaring New Jersey a “Daubert jurisdiction.”

In the early 1990s, the New Jersey Supreme Court shifted away from the “general acceptance” standard for testing the reliability of scientific expert testimony in civil cases enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). It instead endorsed a methodology-based approach. See Landrigan v. Celotex Corp., 127 N.J. 404, 414 (1992); Rubanick v. Witco Chem. Corp., 125 N.J. 421, 447 (1991). The Court reasoned that parties should be permitted to present novel scientific evidence of causation if the trial court acts as a rigorous gatekeeper when reviewing an expert’s reliability and ultimately finds that the expert’s reasoning and methodology are sound. Two years later, in Daubert, the United States Supreme Court also abandoned the “general acceptance” test in favor of a methodology-based approach that entrusted trial courts with the role of gatekeeper. Thus, beginning in the early 1990s, New Jersey state courts considered similar factors to those in Daubert when evaluating expert testimony. Despite these similarities, the New Jersey Supreme Court never formally adopted Daubert or endorsed the factors identified in Daubert for state trial courts to use when performing the gatekeeper role.

In re: Accutane Litigation is a civil mass tort action in which the plaintiffs claim that Accutane, a prescription drug used to treat acne, caused Crohn’s disease, a gastrointestinal illness. A number of epidemiological studies have concluded that there is no causal relationship between Accutane and Crohn’s disease. The plaintiffs’ experts disputed the conclusions of those studies and claimed that Accutane can in fact cause Crohn’s disease. In seeking to exclude the plaintiffs’ expert testimony, the defendants challenged the methodology of plaintiffs’ experts as unreliable.

The trial court ruled in favor of the defendants, excluding the plaintiffs’ expert testimony after finding that their methodology was unsound. The Appellate Division reversed, concluding that the plaintiffs’ experts employed a sound methodology and simply interpreted the data differently than the defendants’ experts.

The Supreme Court held that the Appellate Division erred in reversing the trial court’s exclusion of the plaintiffs’ expert testimony. The Court reaffirmed that appellate courts must apply an abuse of discretion standard when assessing whether a trial court has properly admitted or excluded expert scientific testimony in a civil case. The Court ultimately concluded that the trial court did not abuse its discretion in excluding the expert testimony because the trial court determined that the experts’ methodology was unsound after properly performing a robust analysis of the methodology used. The Court went on to clarify that in performing the gatekeeping role, trial courts should assess both the methodology that an expert uses to arrive at an opinion and the underlying data the expert uses in forming the opinion.

Most notably, the Supreme Court declared that the following non-exhaustive and non-dispositive list of Daubert factors should be incorporated for use by New Jersey courts:

  1. whether the scientific theory can be, or at any time has been, tested;
  2. whether the scientific theory has been subjected to peer review and publication;
  3. whether there is any known or potential rate of error and whether there exist any standards for maintaining or controlling the technique’s operation; and
  4. whether the scientific theory is generally accepted in the scientific community.

New Jersey’s formal adoption of the Daubert factors in civil matters will aid trial court judges in their role as the gatekeepers of scientific expert testimony. It will also provide counsel with issues to consider in retaining and working with experts. Counsel should evaluate their own experts’ methodology against the Daubert factors to protect against the risk that their experts’ opinions will be excluded. Similarly, counsel should refer to the Daubert factors as a roadmap in preparing to take and defend expert depositions, as well as preparing arguments for Rule 104 hearings which evaluate the admissibility of expert testimony.

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