New Jersey Appellate Panel Reverses Trial Court’s Detailed Exclusion of Unreliable Expert Testimony

Although COVID-19 remains a dominant topic in America, there are still some non-related COVID-19 developments worthy of note over the past few months. Don’t worry, this is not a comment on the recent presidential election or the post-election legal battles to overturn the results. We’re providing a brief discussion of something near-and-dear to most, if not all, of those who litigate in the life sciences arena―especially in the product liability realm: expert admissibility.

In 2016, Judge Nelson Johnson, the New Jersey Superior Court judge then assigned to oversee the centralized litigation in the New Jersey state courts over talc powder and ovarian cancer, issued rulings in two such cases striking plaintiffs’ key experts as unreliable and granting summary judgment in favor of the defendants. The plaintiffs sought appellate review of those decisions, which was stayed while the New Jersey Supreme Court issued its ruling in In Re Accutane, 234 N.J. 340 (2018)―which essentially reaffirmed that New Jersey trial courts should act as gatekeepers in assessing expert admissibility in a manner similar to what federal trial courts do under Daubert.

In August 2020, the New Jersey Appellate Division released its opinion on the plaintiffs’ challenges to Judge Johnson’s rulings. In a long exposition covering not only the many scientific studies in the record, but also many principles of epidemiology, the panel concluded that Judge Johnson had exceeded his role as a gatekeeper in assessing the experts’ methodology and the soundness of their data, and had instead strayed into a credibility assessment to favor the defendants’ expert’s opinions over those of the plaintiffs’ experts he excluded. As a result, the panel reversed.

A full discussion of the panel’s lengthy 86-page opinion is beyond the scope of this post, and those who follow the substance of talc and ovarian cancer litigation―as well as those who follow discussions of epidemiology in the law―will likely find the decision worthy of further study. But one thing in particular that struck me in reading it is the relative absence of any significant discussion of the applicable standard of review.

At the outset of the opinion, in addition to laying out the general scope of a trial court’s gatekeeping role in New Jersey post-Accutane, the panel acknowledged that a trial court’s gatekeeping decision is to be reviewed under an “abuse of discretion” standard. In the ensuing pages, however, the panel did not appear to actually afford the trial court any deference. Rather, the panel appeared to reach a different conclusion as to whether the experts’ opinions were unreliable and substituted its opinion for that of the trial court. While the panel did echo the “abuse of discretion” language at the end, it seems much more formulaic than deferential.

Judge Johnson is no longer on the bench and will not be presiding over the cases on remand. However, his underlying opinion was lengthy, detailed, and the product of significant judicial effort. To those on the defense side, it represented exactly the kind of rigorous gatekeeping analysis a trial court should bring to bear―and that should be afforded its due deference on appeal. Hopefully, the Appellate Division’s reversal will not dissuade other trial courts from the time and effort required to conduct a meaningful gatekeeping analysis of expert testimony, instead of taking the easier path of simply letting everything―including erstwhile unreliable expert opinion—go to the jury.

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