While a host of parties is urging the New Jersey Supreme Court to adopt the Daubert standard for admissibility of expert testimony, some lawyers say a change is unnecessary.
An assortment of large employers, business groups and law professors asked the state’s highest court last month to adopt the Daubert standard in amicus briefs for a mass tort concerning the acne drug Accutane. The pro-Daubert campaign consists of four amicus briefs in In Re: Accutane Litigation, where Hoffmann-La Roche Inc. is seeking to overturn an Appellate Division decision finding testimony from plaintiffs’ experts admissible.
The Daubert standard, which is derived from the 1993 U.S. Supreme Court decision Daubert v. Merrell Dow Pharmaceuticals, is used in federal courts and in a majority of state courts, and is more stringent in weighing the admission of expert testimony than New Jersey’s Rule of Evidence 702. In the Accutane case before the Supreme Court, proponents of Daubert have argued in amicus briefs that the current standard is unclear and that cases that couldn’t survive in federal courts or in other state courts are being filed in New Jersey in hopes of getting a jury trial on less-than-reliable expert testimony.
Hoffmann-La Roche has asked the Supreme Court to hear an appeal of an Appellate Division ruling from July that reinstated more than 2,000 cases based on a finding that expert testimony from gastroenterologist Arthur Kornblulth and biostatistician David Madigan was wrongly excluded by Superior Court Judge Nelson Johnson. Amicus briefs say the time is ripe for New Jersey to make Daubert the law of the land.
But lawyers representing plaintiffs are critical of the amicus briefs filed in the Accutane case.
“For decades, the law of New Jersey has been that as long as a proposed expert’s methodology and data are of the type reasonably relied on by comparable experts, the court could decide in favor of admissibility,” said Michael Galpern of Locks Law Firm in Cherry Hill. “In this case, the trial judge was specifically reversed for substituting his judgment for the judgment of a qualified expert and thereby was reversed for excluding otherwise relevant evidence. The corporate-coordinated effort before the New Jersey Supreme Court advocating for a Daubert standard is simply an invitation for more judges throughout the state to make the same mistake that the trial judge in Accutane made,” Galpern said.
New Jersey’s current standard for admitting expert testimony is well-developed and readily understood by lawyers, and a change is not needed, said Adam Slater of Mazie Slater Katz & Freeman in Roseland.
“Roche, the party that lost the appeal, doesn’t care what the standard is—this is just a results-oriented argument that Roche is making for its own self-interest,” said Slater. “You look at who’s supporting it—it’s a bunch of similarly situated companies.”
Slater said there is no need to change the current standard for evaluating expert testimony.
“It’s a very well-developed standard that works very well and I see no reason the court needs to change this long-standing criteria,” said Slater, who is lead plaintiff counsel in litigation by users of hypertension drug Benicar who linked use of the drug to severe diarrhea. Drugmakers Daiichi Sankyo and Forest Laboratories agreed to a $300 million settlement in that case in August.
The issue of whether to adopt Daubert is not entirely new to the Supreme Court. In 2015 the court received a report from a study committee chaired by Superior Court Judge Jamie Happas on whether Rule 702 should be replaced with Daubert. The committee, which sought to find out whether Rule 702 was unacceptably vague and whether it drew litigation to New Jersey from other jurisdictions, answered “no” to both questions. The Happas committee found that New Jersey appellate verdicts decided between 2005 and 2013 showed a tendency toward admissibility and pro-plaintiff verdicts but not “egregiously so.”
In the Accutane case, the Supreme Court has not said whether it will hear an appeal of the ruling finding the expert reporters admissible.
The court has received briefs from the American Medical Association and the Medical Society of New Jersey; 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 favored the adoption of the Daubert standard.