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September 28, 2018 Practice Points

Court Recognizes Broad Rule of Admissibility for Opinion Testimony

The Georgia Court of Appeals recognized a broad rule of admissibility for opinion testimony that is a potential boon to policyholders and significant risk to insurers in first party cases

by Nick Panayotopoulos and Alan Holcomb

In a unanimous decision of the New Jersey Supreme Court, New Jersey has joined the states adopting a heightened standard for the admissibility of expert testimony. In re: Accutane Litigation, No. A-25-2017-079958 (N.J. Sup. Ct. August 1, 2018), addressed the admissibility of expert testimony proffered by a 2,000-member class that alleged a causal connection between use of the drug Accutane and the incidence of the chronic bowel illness Crohn’s disease. The proposed expert testimony was in direct conflict with a number of epidemiological studies finding no causal relationship between Accutane use and the development of Crohn’s disease.

In its decision, the court addressed three issues: 1) whether the trial court properly excluded plaintiffs’ experts’ testimony; 2) whether the correct standard was applied; and 3) whether New Jersey’s standard for assessing the reliability of expert testimony required clarification.

The court observed that New Jersey was one of only a handful of states that had not adopted the three-factor test for the admissibility of expert testimony incorporated in Federal Rule of Evidence 702 in response to the U.S. Supreme Court’s seminal decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny. The court recognized in this regard that New Jersey’s trial courts “can and should have more clear direction…on how the gatekeeping function is properly performed,” and by its decision, endeavored to do so.

The Daubert standard, which is recognized as the consensus rule nationwide, defines the scientific methodology criteria that experts must meet, taking into consideration such factors as whether the theory has been subjected to peer review, whether the theory can be tested, and—most importantly—whether the theory has been generally accepted in the scientific community. The court stressed that the adoption of these factors was not inconsistent with New Jersey’s approach to determining the admissibility of expert testimony. It observed that it found little distinction between the Daubert principles and New Jersey’s own standards for a trial court’s “gatekeeping” function. The court therefore determined that the Daubert standard should be incorporated for use by New Jersey courts as a “guide for our courts to consider when performing their gatekeeper role concerning the admission of expert testimony.”

The court, however, stopped short of adopting the Daubert standard in its entirety, instead holding that “like several other states, we find the factors useful, but hesitate to embrace the full body of Daubert case law as applied by state and federal courts.” Notably, the court expressed hesitation with the differing views of the gatekeeping role of the trial courts adopted in various Daubert jurisdictions, holding that in New Jersey, the “proper gatekeeping in a methodology-based approach to reliability for expert scientific testimony requires the proponent to demonstrate that the expert applies his or her scientifically recognized methodology in the way that others in the field practice the methodology.”

Applying its hybrid, or “Daubert-lite,” approach to the facts of the case, the court upheld the exclusion of the “expert” testimony. Specifically, the court cited with approval the trial court’s consideration of whether the scientific community would accept the methodology employed by the plaintiffs’ experts, holding that “the trial court did the type of rigorous gatekeeping that is necessary when faced with a novel theory of causation, particularly one, as here, that flies in the face of consistent findings of no causal association as determined by higher levels of scientific proof.”

In application, the decision will have an immediate and significant impact in the products liability arena in New Jersey, which has long been a forum favorite of plaintiffs’ attorneys because of its relaxed evidentiary threshold standards. Plaintiffs’ experts will now be required to present theories that are recognized as scientifically-sound by others in the community—as opposed to the “novel” theories of causation—in order to advance a products liability action in New Jersey. This brings the Garden State in line with the majority of jurisdictions, and will likely dampen the enthusiasm with which plaintiffs’ attorneys have approached New Jersey as a forum in mass tort cases. Perhaps more importantly, there is a good chance this decision will act as a trend-setter and affect courts in the minority of states that have not yet adopted Daubert.

Nick Panayotopoulos and Alan Holcomb are with Weinberg, Wheeler, Hudgins, Gunn & Dial, Atlanta, GA.

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