03 Aug IN RE ACCUTANE LITIGATION (A-25-17) (079958) Daubert Factors Added to New Jersey Methodology-Based Approach
Cedar Grove, New Jersey – August 3, 2018
Yesterday, the Supreme Court of New Jersey adopted the use of Daubert factors for assessing testimony in cases involving scientific expert testimony. Although the Court clarified the gatekeeping role of trial courts in cases involving scientific expert testimony and medical causation, the Court stopped short of declaring New Jersey a Daubert jurisdiction. Instead, the Court added Daubert to New Jersey’s existing methodology-based approach, which was originally set forth in Landrigan v. Celetex Corp. and Rubanick v. Witco Chemical Corp., and created a flexible framework for determining the admissibility of scientific expert testimony.
The Court reaffirmed that, pursuant to Landrigan and Rubanick, experts are required to identify the reliability and soundness of their reasoning and methodology. Adding to that existing case law, the Court identified the following Daubert factors to determine whether scientific expert testimony is reliable and admissible: (1) whether the scientific theory can be, or at any time has been, tested; (2) whether the scientific theory has been subjected to peer review and publication, noting that publication is one form of peer review but is not a “sine qua non”; (3) whether there is any known or potential rate of error and whether there exist any standards for maintaining or controlling the technique’s operation; and (4) whether the scientific theory has gained general acceptance in the scientific community.
The Court noted that those factors are “perhaps pertinent for consideration, but not dispositive or exhaustive.” The Court further noted that the Daubert factors are consistent with established New Jersey evidential standards but are not necessarily definitive or exclusive. The Court also reiterated that trial courts should hold Rule 104 hearings to assess whether an expert’s opinion is based on scientifically sound reasoning.
Because the Court stopped short of declaring New Jersey a Daubert jurisdiction, New Jersey’s standard for admissibility of scientific evidence remains more lenient than the federal standard. Although trial courts must now use Daubert factors to assess an expert’s methodology and the factual foundation for an expert’s testimony, courts are not limited solely to Daubert. The Court’s opinion expanded the flexible framework that trial courts use to determine whether expert testimony is admissible and will likely continue to allow expert testimony to be based on new and novel methodologies.
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