In its 1993 Daubert opinion, the United States Supreme Court abandoned Frye’s “general acceptance” requirement for admission of scientific evidence under Rule 702. In so doing, it extended the gatekeeping function of a trial court, tasking it with ensuring that an expert’s testimony is both reliable and relevant before admitting it to the jury. When considering the admissibility of scientific evidence under Rule 702, the court may consider whether the theory or technique has been tested, whether it has been subject to peer review or publication, any standards governing its application, and its level of acceptance in the scientific community.
As of last month, most states had adopted Daubert for purposes of their Rule 702 analogues. New Jersey was one of the few exceptions, until now. On Aug. 1, the New Jersey Supreme Court issued its opinion in In re Accutane Litigation, No. 079958, 2018 WL 3636867, noting that although New Jersey’s standard and the federal standard “moved in the same direction towards the same common goal,” the court had “never adopted Daubert or incorporated the factors identified in Daubert for use by our courts when performing the gatekeeper role.” Perceiving “little distinction” between Daubert’s principles regarding expert testimony and those of New Jersey courts, the court determined that Daubert’s “factors for assessing the reliability of expert testimony will aid our trial courts in their role as the gatekeeper of scientific expert testimony in civil cases.”
Applying this clarified standard to the Accutane litigation, here is what transpired. In one of many mass tort cases involving Accutane, plaintiffs in this particular action alleged that they developed Crohn’s disease as a result of taking the drug. In a battle of the experts, the plaintiffs proffered a gastroenterologist, who opined that there is an association between Accutane and Crohn’s, and a statistician, who opined that the epidemiological studies relied on by the defendants to disprove the alleged causal connection were flawed. The defendants proffered two similarly credentialed experts who said the opposite. After holding a Rule 104 evidentiary hearing, the trial court issued an order barring the plaintiffs’ experts from testifying about the causation between Accutane and Crohn’s and whether the epidemiological studies relied on by the defense were flawed. In so doing, the trial court questioned the experts’ methodologies and found that they were “self-validating” experts who were “unwilling to subject their ideas for evaluation in the scientific community” through peer review or publication.
Departing from the traditional abuse of discretion standard, and giving less deference to a trial court’s decision to admit expert testimony, the Appellate Division reversed. It noted that the plaintiffs’ experts were “extremely well-qualified” and held that “the experts relied on methodologies and data of the type reasonably relied upon by comparable experts.”
On certification to the New Jersey Supreme Court, the defendants argued that the Appellate Division’s decision nullifies the trial court’s role as gatekeeper for expert testimony and allows “any credentialed expert to argue their way to a jury.” The Supreme Court appeared to agree, and also reiterated that the correct standard of review is abuse of discretion.
Under the clarified test in Accutane, the trial court must determine “whether the scientific community would accept the methodology employed by [the expert] and would use the underlying facts and data” relied upon by the expert. According to the Supreme Court, the trial court adequately performed this function and issued a “well-supported and well-reasoned” decision. On that basis, the Supreme Court refused to find an abuse of discretion, even if it would have reached a different conclusion in the first instance.
There are a few caveats here. First, the Supreme Court specifically noted that while it adopted the Daubert standards, New Jersey is not a “Daubert jurisdiction,” meaning that the Daubert factors are “useful,” but not necessarily dispositive. Similarly, while some Daubert cases may be persuasive, the court declined to wholeheartedly embrace the “full body of Daubert case law” developed by other state and federal courts, in part because of the “discordant views about the gatekeeping role among Daubert jurisdictions.” Finally, the court reiterated that although Daubert applies in civil cases, the “general acceptance” test still applies in criminal matters.
The Accutane opinion will undoubtedly become a focal point in New Jersey litigation involving expert testimony. But, as in the past, not every case involving expert testimony necessitates a Daubert (or Accutane) hearing. In run-of-the-mill medical malpractice cases, for example, the reliability and relevance of testimony by physicians is often not a significant issue. In cases involving novel expert testimony, however, Daubert and its progeny become the center of attention.
Consider United States v. Norwood, 939 F. Supp. 1132 (D.N.J. 1996), one of the earlier cases applying Daubert in the District of New Jersey. There, the prosecution intended to rely on accounts by white eyewitnesses to a crime allegedly committed by a black defendant. The defendant sought to introduce expert testimony by a psychologist regarding the unreliability of cross-racial identification. At the time, this type of testimony was still somewhat novel. Pre-Daubert courts admitted it, but whether the testimony was admissible under Daubert was an issue of first impression. The district court ultimately admitted it, finding that it was reliable and would be helpful to the jury.
The upshot is that the outer limits of admissibility under Accutane will likely be tested in cases involving novel and complex expert issues. Moreover, Accutane emphasizes that trial courts will play a more significant role as “gatekeepers” of expert testimony and that their decisions will be reviewed under an abuse of discretion standard.
Stephen M. Orlofsky is a former U.S. Magistrate Judge and former U.S. District Judge for the District of New Jersey. He is the administrative partner of the Princeton office of Blank Rome, and leads the firm’s appellate practice. Ethan M. Simon is an associate in the firm’s Philadelphia and Princeton offices. He handles a variety of commercial litigation matters and focuses on appellate advocacy.