N.J. courts have to now consider if science is "advocacy-driven," lawyers in landmark Accutane ruling say

By Angela Underwood | Aug 6, 2018

TRENTON, N.J. (Legal Newsline) – Two New Jersey attorneys discussed the scientific reliability and New Jersey Supreme Court's Aug. 1 ruling regarding evidence in a case filed by 2,000 plaintiffs who allege acne medication Accutane could cause Crohn's disease.

TRENTON, N.J. (Legal Newsline) – Two attorneys involved in a major New Jersey Supreme Court ruling say it will soon be applied to other cases working their way through state courts - which is good news for corporate defendants.

On Aug. 1, the state Supreme Court's excluded testimony in lawsuits that attempted to show an acne medication causes Crohn's disease, effectively dismissing more than 2,000 claims because the science on which the plaintiffs relied was unreliable.

Lead counsel for Accutane maker Hoffman-La Roche cited epidemiological studies that stated there was no link between Accutane and Crohn’s.

Though the trial court excluded plaintiffs experts' testimony, an appeals court reversed that decision and allowed it. 

Paul Schmidt, a partner at Covington & Burling, spoke on a teleforum hosted by the New Jersey Civil Justice Institute, said the decision matters, both long-term and immediately, because there are other cases working their way through the appeal process that present this very same issue.

What the decision did was adopt the federal standard for allowing jurors to hear testimony. Under this Daubert standard, a judge can decide that the evidence is not supported by acceptable science and exclude it from being presented.

Other, more lax standards allow jurors to decide the credibility of the evidence themselves.

Colleen Hennessey, a partner at Peabody & Arnold, said scientific principles highlighted by the Supreme Court in the trial court’s decision were based on how to use the Bradford Hill Criteria more than they were referring to the Scientific Manual of Hierarchy of medical evidence.

“Those things matter, and the court made it clear you have to look at the methodology these experts are using, not just what their conclusions are, and if they have some advocacy-driven reason for why they are disregarding evidence,” Hennessey said.

The “inconsistent application of methodology” was obvious according to Hennessey, who said that was cited several times to show importance regarding “lower lines of evidence such as case reports and animal studies,” and was key to the downfall in both the trial court level and the Supreme Court.

“That was the serious flaw,” Hennessey said.

Schmidt said in his next Supreme Court argument he will look to the recent ruling to support his arguments, even giving some tips to future lawyers who may fight similar cases.

“This really highlights that if you have a court that is willing to think about the science not to shy away from pointing out that fairness matters on both sides,” Schmidt said.

Schmidt noted the appellate decision was published and effectively binding, which is why the Supreme Court took up the decision.

“The argument we made before the Supreme Court about the appellate court decision is that it effectively let any level of evidence come in if it was sponsored by a credentialed expert who said, ‘I have in fact looked at all the evidence and here are my arguments to why I don’t regard some evidence as well as I regard others,’” Schmidt said. “It was potentially a very broad decision on admissibility.”

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