In New Jersey courts, the New Jersey Rules of Evidence (N.J.R.E. 702 and 703) guide the admissibility of expert testimony. Interpreting N.J.R.E. 702, the New Jersey Supreme Court has determined the rule requires three essential elements for admitting expert testimony:
- First, the intended testimony must deal with a subject matter that goes beyond the understanding of an average juror.
- Second, the field being testified about must be at an advanced state, ensuring that an expert’s testimony is reliable.
- Third, the witness offering the testimony must possess sufficient expertise in the relevant area.
See Creanga v. Jardal, 185 N.J. 345, 886 A.2d 633 (2005).
N.J.R.E. 703 addresses the foundation of expert testimony. It states that expert opinions must be grounded in facts or data derived from the expert’s personal observations, evidence presented at the trial, or data that experts typically rely on, even if not necessarily admissible in court. The “Net Opinion Rule” is closely related to N.J.R.E. 703 and prohibits the admission of an expert’s conclusions that lack support from factual evidence or other data. Instead, an expert must provide a well-founded explanation supporting his opinion, rather than offering a mere conclusion. This requirement was highlighted in the case Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144, 77 A.3d 1161 (2013).
In a crucial case in 2015, the New Jersey Supreme Court addressed the scope of the net opinion rule in Townsend v. Pierre, 221 N.J. 36, 110 A.3d 52 (, 2015). This rule prevents expert testimony from being admitted if it lacks a sufficient basis and support.
It is essential to note that, according to New Jersey case law, the net opinion rule is not a standard of perfection. It does not require experts to organize or support their opinions in a specific manner preferred by opposing counsel. In addition, the admissibility of an expert’s proposed testimony should not be solely based on whether it accounts for every condition or fact considered relevant by the opposing party.
However, the net opinion rule mandates that experts must identify the factual bases for their conclusions and explain their methodology. They must also demonstrate the reliability of both the factual bases and the methodology used. If an expert’s conclusion is based on mere speculation, a court must exclude it. When an expert engages in speculation, he no longer serves as an aid to the trier of fact and morphs into another juror.
Unsubstantiated expert testimony cannot offer the benefits envisioned by N.J.R.E. 702, which is to provide the jury with a qualified specialist’s reliable analysis of a matter beyond the understanding of an average juror. Given the importance of expert testimony, trial courts must ensure that experts do not express speculative opinions or personal views that lack support in the record. An expert’s opinion that contradicts the factual record or is unsupported by it cannot satisfy a party’s burden of proof on an element of a claim.
Then Comes In Re Accutane
In 2018, the New Jersey Supreme Court further refined the net opinion rule in yet another landmark case, In re Accutane Litig., 234 N.J. 340 (2018). The Court in Accutane emphasized the “rigorous” role that trial courts must play in assessing the reliability and admissibility of scientific causation evidence under N.J.R.E. 702 and 703. The Court’s decision provided clearer guidance to New Jersey trial courts on how to properly perform the gatekeeping function.
Additionally, the decision adopted the key “factors” recognized by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), as guideposts for evaluating the reliability of scientific evidence.
This Accutane decision marked a noteworthy development in New Jersey law, carrying significant implications for parties considering the use of expert testimony in their cases.
Before the Accutane decision, the standard governing the admissibility of expert scientific testimony under New Jersey law was well-established but somewhat confusing. While New Jersey had been among the courts to be persuaded that the traditional “general acceptance” test under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), was too constricting, it was also one of the minority of states that did not expressly adopt the superseding standard set by the United States Supreme Court in Daubert.
Over two decades ago, the New Jersey Supreme Court explained that a theory of causation that had not yet reached general acceptance in the scientific community could still be considered sufficiently reliable if it was based on a sound, adequately founded scientific methodology involving data and information reasonably relied upon by experts in the scientific field (Rubanick v. Whitco Chem. Corp., 125 N.J. 421, 449 (1991)).
This led to uncertainty, and litigants often found courts hesitant to venture beyond a surface level examination of whether the expert had offered some plausible scientific explanation for their conclusions and relied on data and information reasonably relied upon by comparable experts in the scientific field.
However, under Daubert, courts must conduct a rigorous assessment of whether the reasoning or methodology underlying the proposed expert’s testimony is scientifically valid and applicable to the case’s facts.
The New Jersey Supreme court imported that requirement of Daubert in Accutane.
To aid courts in this analysis, Daubert also listed non-exhaustive factors to serve as guideposts when evaluating the validity and reliability of scientific expert testimony. These factors include whether the scientific theory has been tested or peer-reviewed, whether there are known or potential rates of error, and whether there is general acceptance in the scientific community for the theory.
Applying Daubert in New Jersey
Accutane involved a mass tort case with over 2,000 plaintiffs who alleged that Accutane, an anti-acne drug, caused Crohn’s disease. The Supreme Court had to determine if the plaintiff’s medical causation experts’ testimony was scientifically valid.
After an extensive evidentiary hearing, the trial court excluded both plaintiffs’ medical causation experts’ testimony as unreliable. The trial court found that their methodology was unsound because they did not interpret the relevant data and apply it to the case’s facts as other experts in the field would. The trial court also criticized the experts for failing to subject their ideas to evaluation by the scientific community through peer review or publication.
The Appellate Division later reversed the trial court’s decision to exclude the experts’ testimony. However, on appeal, the Supreme Court declared the trial court’s decision to be “unassailable” under prevailing law. The Court emphasized that the Appellate Division had applied an insufficiently deferential standard of review and that there was ample evidence supporting the trial court’s determination that the plaintiffs’ experts deviated from core scientific principles and strayed from their claimed methodology to reach their conclusions.
Furthermore, the Accutane decision clarified that New Jersey trial courts must rigorously assess both the methodology used by an expert to form their opinion and the underlying data used in their conclusions.
The Accutane case represents a significant victory for evidence-based science and reflects a change towards more active and rigorous scrutiny of novel causation methodologies in New Jersey courts. It aligns New Jersey’s standards with the federal Daubert standard, providing helpful guideposts for courts to consider when performing their gatekeeper role in admitting expert testimony.
New Jersey Litigation Attorneys
Over the years, the experienced New Jersey litigation lawyers at Schiller, Pittenger & Galvin, P.C., have extensively used expert witnesses in both civil and criminal matters. If you are facing a lawsuit with significant damages, or you, a family member, or your business have been damaged by the negligent or intentional acts of another, maybe we can help. Call us at our Scotch Plains office at 908-490-0444 or email us here.