An appeal before the New Jersey Supreme Court over expert testimony in suits concerning the acne drug Accutane is seen by many as a chance to revise the state’s standard for admitting such evidence.
Lawyers for drugmaker Hoffmann-La Roche have asked the court to consider whether a trial judge exceeded his authority by excluding two expert witnesses for the plaintiffs based on a conclusion that their views lacked support in the scientific community. That decision was later overturned by the Appellate Division, which reinstated 2,100 plaintiffs’ suits based on its finding that the judge below went beyond his role as gatekeeper.
The Accutane case has drawn amicus curiae briefs from several dozen parties who say the case provides an opportunity for the court to clarify New Jersey’s expert witness stand. Some asked the court to adopt the standard from Daubert v. Merrell Dow Pharmaceuticals, a 1993 U.S. Supreme Court ruling governing admission of expert testimony. The Daubert standard refers to a series of guidelines for courts to use when evaluating scientific expert testimony. New Jersey, along with New York and Pennsylvania, are among nine states that have not adopted the Daubert standard.
“The position we are taking on behalf of those amici is that the time has come for New Jersey to join the majority of other states and the federal court system and adopt the Daubert standard for admission of expert testimony. It’s been our position that the rules for expert admission as applied in New Jersey state court are weaker than they are in the federal court system and the other states. That creates a problem where a case that couldn’t survive in the federal courts and in the other jurisdictions are filed here in New Jersey in hopes of getting a jury trial on expert testimony that just isn’t reliable,” said Edward Fanning of McCarter & English in Newark, who submitted an amicus brief for the New Jersey Chamber of Commerce and three other business groups.
The expert testimony issue arose in multicounty litigation by Accutane users before Superior Court Judge Nelson Johnson in Atlantic County. Johnson is hearing roughly 2,500 cases in which plaintiffs claim they developed Crohn’s disease and other intestinal problems after taking Accutane.
In February 2015, Johnson granted a defense motion to bar two medical experts—David Madigan, a statistician, and Arthur Kornbluth, a gastroenterologist—who gave the opinion that the epidemiology studies on which the defense relied were flawed and unreliable, and that Accutane can cause Crohn’s disease. A few months later, in May 2015, Johnson dismissed 2,076 cases in light of the evidentiary ruling.
But this July the Appellate Division reversed Johnson’s ruling and reinstated the cases, finding he exceeded his role as gatekeeper when he concluded that plaintiffs’ experts lacked credibility. The panel said Johnson wrongly condemned the experts for relying on scientific evidence other than epidemiological studies, despite their plausible explanations for doing so.
Hoffmann-La Roche asked the Supreme Court to hear the case on Aug. 28. In filings with the court, the company said that the Appellate Division ruling, if allowed to stand, would “replace gate-keeping with a rule that allows any credentialed expert to argue their way to a jury, regardless of whether the argument is coherent or scientifically founded.”
Plaintiffs asked the court to deny certification on Sept. 12. In a filing with the court they said the drugmaker has wrongly accused the Appellate Division of eviscerating meaningful gatekeeping. They claim that the drugmaker’s criticism of the methodology of plaintiffs’ experts is premised on the erroneous belief that epidemiology studies do not show a connection between Crohn’s and Accutane and that all other types of evidence should be disregarded. Rather, the analysis and testimony of the experts at issue “demonstrates that Roche’s stark and blind reliance on purported study findings without consideration of limitations and biases was contrary to good science and itself unreliable,” the plaintiffs said in their petition to the Supreme Court.
Rebecca Phillips, a Hoffmann-La Roche spokeswoman, said in a statement about the Supreme Court appeal, “Given the striking consensus in the medical, academic, and business communities about the importance of this issue and the error of the Appellate Division’s ruling, we hope the Supreme Court will hear Roche’s request to clarify the standards for expert admissibility in New Jersey.”
The Supreme Court has received an amicus curiae brief from the American Medical Association and the Medical Society of New Jersey; and one from four business groups—the HealthCare Institute of New Jersey, the New Jersey Business and Industry Association, the Commerce and Industry Association of New Jersey, and the New Jersey Chamber of Commerce. Also submitting amicus briefs are 21 corporations doing business in the state, including Benjamin Moore & Co., Verizon Communications, Celgene Corp., Eisai Inc., Merck Sharp & Dohme, Bristol-Myers Squibb and Bayer U.S.; and eight law professors. All asked the court to clarify New Jersey’s standard for evaluating expert witnesses, and some groups asked the court to adopt Daubert.
Lead plaintiff counsel David Buchanan of Seeger Weiss in New York did not return a call about the Supreme Court appeal, and other plaintiff lawyers in the case either did not return calls or referred a reporter to Buchanan. Michael Imbroscio of Covington & Burling on Washington, D.C., a lawyer for Hoffmann-La Roche, declined to comment.