TRENTON, N.J. (Legal Newsline) – New Jersey judges must require plaintiffs lawyers who flock to their courts to come up with more than junk science if they want jurors to hear their arguments.
In an Aug. 1 decision regarding the acne medication Accutane, the New Jersey Supreme Court adopted the Daubert evidence standard – beating back an effort by in-state and out-of-state trial lawyers who wanted judges to ignore more than 10 years of epidemiological studies that show no link between the drug and Crohn’s disease.
Justice Jaynee LaVecchia authored the court’s decision, which excludes testimony from two plaintiffs experts whose testimony was deemed unreliable. The trial judge found the experts’ arguments to be attempts to cherry-pick evidence that supported a predetermined conclusion.
The closely watched case involved major plaintiffs firms like Seeger Weiss and Weitz & Luxenberg and drew attention from the state’s trial lawyers group – the New Jersey Association for Justice, which filed an amicus brief.
“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,” LaVecchia wrote.
The unanimous decision will affect a state courts system that has been a haven for trial lawyers suing pharmaceutical companies. Expert testimony standards in the state were a focus for legal reform and business groups who were encouraged by the original ruling in the Accutane litigation.
Atlantic County Judge Nelson Johnson’s decision to exclude two plaintiffs experts resulted in the dismissal of more than 2,000 lawsuits in the long-running mass tort that features a now-overturned $25 million verdict for an Alabama plaintiff.
But the business community worried when an appeals court found Johnson exceeded his authority.
In overturning the appeals court, the Supreme Court "reinforced the role of New Jersey’s trial courts as gatekeepers for the admissibility of expert testimony," said Alida Kass, president of New Jersey Civil Justice Institute.
"And by adopting the Daubert factors, the Court has provided trial courts with more robust guidance in performing that gatekeeping role.
"This development has been a top priority of NJCJI. The vast majority of other states have already adopted the federal standard, putting New Jersey businesses at a growing disadvantage, as less rigorous gatekeeping invited out-of-state claims based on unreliable expert testimony. This new decision will go a long way to keeping such meritless cases out of New Jersey courtrooms."
Judge Johnson wasn’t using the Daubert standard – which features a stricter evidentiary threshold than another option, the plaintiff-favored Frye standard – when he made his Accutane ruling.
He was using state law precedent that also led to him rejecting “made-for-litigation” testimony in the high-stakes talcum powder litigation.
Johnson & Johnson was recently nailed with a $37 million verdict in a talcum powder case overseen by a different judge. The causal link of talcum powder to alleged illnesses is being argued by plaintiffs lawyers and the company in various litigation hot spots around the country, and when plaintiffs succeed, they win millions.
The Supreme Court found the state’s evidentiary standards to be similar to Daubert, which is used in federal courts and most state courts. It allows judges to assume the role of gatekeeper – preventing juries from hearing evidence they deem unreliable.
More lax standards allow jurors to weigh the credibility of the evidence themselves.
“We perceive little distinction between Daubert’s principles regarding expert testimony and our own, and believe that its 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,” LaVecchia wrote.
In the Accutane case, the testimonies of two doctors were at issue.
Dr. Arthur Asher Kornbluth, a gastroenterologist, based his opinion that Accutane causes Crohn’s disease on case reports, animal studies and causality assessments. Dr. David Madigan, a statistician, refuted the studies cited by defendants Hoffman-LaRoche and Roche Laboratories.
In response, the defendants argued that the studies are preferred to Kornbluth’s methods and that the cause of Crohn’s disease is unknown.
Relying on animal studies – specifically dog studies - is not appropriate because dogs can’t get inflammatory bowel disease, Dr. Maria Oliva-Hemker testified for the defendants.
“In sum, her testimony concluded that the animal studies are simply not sufficient generally for forming a conclusion about causation here both because of the nature of the disease at issue and because they are merely ‘hypothesis-generating data,’” LaVecchia wrote.
Though the trial judge dismissed the testimony of the plaintiffs’ witnesses and called them “hired gun(s),” an Appellate Division panel reversed. That court ruled the experts were well-qualified and “considered all of the relevant data and information… and expressed valid reasons for rejecting the conclusions of some of the epidemiological studies and in accepting other studies as supportive of their opinion.”
Business and medical groups fought that ruling, setting the stage for the Supreme Court to address the state’s standards, which have led to unreliable evidentiary decisions, those groups said.
“That the trial court deemed their testimony to be unreliable and excluded it from being presented is unsurprising,” LaVecchia wrote.
“Ample evidence in the record supports that conclusion.”
From Legal Newsline: Reach editor John O’Brien at email@example.com.