In Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), the U.S. Supreme Court altered the “general acceptance” standard for the admissibility of scientific evidence which had originated 70 years earlier in the D.C. Circuit case of Frye v. United States. The general acceptance standard had also been adopted by the NJ Supreme Court in State v. Kelly in 1984, where the court identified three prerequisites for expert testimony: (1) that it concern a subject matter beyond the knowledge of average jurors; (2) that the scientific community accept the premises underlying the proferred testimony so as to be sufficiently reliable; and (3) that the witness have sufficient expertise in the field.
By the time Daubert was decided, the New Jersey Supreme Court had already decided Rubanick v. Witco Chem. Corp., in which it broadened the “general acceptance” standard to allow a trial court to consider whether comparable experts in a scientific field, using similar methodologies, would rely on the information underlying the proposed expert’s opinion. The following year, in Landrigan v. Celotex Corp., the court further elaborated by holding that a proposed expert might, in arriving at his opinion, rely on epidemiological studies supported by “some expert consensus in the appropriate field.”
Under Daubert, Rubanick and Landrigan, general acceptance by scientists in that particular field was not a requirement, but rather, was one of a non-exhaustive list of factors allowed to be considered in assessing scientific reliability. These cases all directed the trial judge to focus on the expert’s stated principles and his or her methodology. The general factors as to both, neither dispositive nor exhaustive, are (1) whether the scientific theory has been adequately tested; (2) whether it has been subjected to peer review and possibly publication; (3) whether standards exist for the maintenance or control of the review; and (4) whether the scientific theory is generally accepted in the scientific community.
This background brings us to the recent Supreme Court decision of In re Accutane Litig., ____ N.J. ____ (2018), which explored the relationship between Daubert and New Jersey’s standard for analysis in toxic tort cases that are on the edge of scientific knowledge and practice. The court’s lengthy and comprehensive opinion includes an historical review and analysis of evidentiary principles and sets forth the touchstone for expert witness testimony.
The court’s holding was that in toxic-tort litigation, a scientific theory of causation that has not yet reached general acceptance in the scientific community still may be found sufficiently reliable if based on a sound, adequately founded scientific methodology involving data and information of the type reasonably relied on by experts in that field and presented by witnesses qualified to testify in the field.
The commonly received wisdom is that the Daubert is more favorable to defendants than was Frye. In fact, the broadened Daubert, Rubanick and Landrigan criteria for determining whether a proposed expert may testify is really more favorable to plaintiffs’ attorneys who are pursuing an affirmative claim than was the long-time standard of “general acceptance.”
In Accutane, the trial court, after a Rule 104 pretrial hearing, barred plaintiff’s experts from testifying because the trial judge found their methodology unsound. The Appellate Division reversed, concluding that plaintiffs’ experts, qualified in their fields, did employ a sound methodology in accordance with the general acceptance standard and simply interpreted underlying data differently than did defendants’ experts. The Supreme Court granted certification to determine whether the Appellate Division employed the correct standard when overturning the trial court’s decision to bar expert testimony and further, to clarify the appellate standard for assessing a trial judge’s determination as to the reliability of expert witnesses proffered for trial.
The court described the trial judge’s task as one of “flexible” inquiry into the scientific principles presented by the claims in a particular case, i.e., the “overarching subject is the scientific validity—and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission,” so as to insure “that an expert’s testimony both rests on a reliability foundation and is relevant” because based on valid scientific principles.
The court then held that the appellate court must measure the validity of the trial judge’s ruling solely on an abuse of discretion standard. In fact, perhaps the most salient important contribution to jurisprudence in this area is the court’s reaffirmation that the abuse of discretion standard, not mentioned in either Rubanick or Landrigan, rather than an independent evaluation by the appellate court, is to be the rule of the future as it was in the past. This, of course, puts a high burden and a qualitative premium on trial judges who will have to make the scientific call. But, as noted in Rubanick, “judges, both trial and appellate, have no special competence to resolve the complex and refractory causal issues raised by the attempt to link low-level exposure to toxic chemicals with human disease.”
One might make a strong argument that cases involving such cutting edge theories of causality should be assigned specially, as medical malpractice cases once were and as certain commercial disputes presently are, to a particular judge in the venue who would be the most competent to make difficult decisions as were made by the trial judge in Accutane.
Editorial Board members Edwin Stern and Lawrence Lustberg recused from this editorial.