Issue Is the Standard for Admissibility of Expert Testimony

CHICAGO ­– (March 1, 2018)— DRI – The Voice of the Defense Bar has submitted a brief to the New Jersey Supreme Court regarding In Re Accutane Litigation, involving the standard for admissibility of expert testimony. The brief was submitted by DRI’s Center for Law and Public Policy.

The petition was filed by defendants Hoffmann-La Roche Inc. and Roche Laboratories Inc., the manufacturers of prescription acne drug Accutane, to determine whether New Jersey should expressly adopt Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), or otherwise clarify New Jersey’s rules regarding the standards for admissibility of expert testimony. 

Roche successfully moved in the trial court to exclude the testimony of plaintiffs’ causation experts for failing to utilize a reliable methodology to reach their causation opinions, which linked Accutane and Crohn’s disease. The appellate division issued a published opinion reversing the trial court’s decision. The Supreme Court of New Jersey has framed the issue as whether the trial court erred “in barring as scientifically unreliable the testimony of plaintiffs’ expert witnesses?”

Supporting Roche, the DRI amicus brief urges the New Jersey Supreme Court to clarify that only expert testimony based on reliable, scientific methodology, and reliably applied to the facts of the case, is admissible at trial.  While expert testimony is typically necessary in complex mass tort actions and often helpful to the jury in reaching a just outcome, it can be harmful when not properly controlled. 

Psychological research indicates that when jurors are asked to decide complex scientific matters, they often rely on the credentials of an expert and the expert’s “likeability” as the basis for evaluating expert testimony, rather than focusing on whether the expert’s methodologies are scientifically unsound and unreliable, which they may not be competent to judge.  Accordingly, the trial courts need to fulfill their “gatekeeping” responsibility by preventing unreliable expert testimony from reaching the jury.

           The DRI amicus brief warns that allowance of unreliable expert testimony, not grounded in reliable scientific methodology, leads to unjust results that often cannot be corrected on appeal. For these and other reasons, the DRI amicus brief urges the New Jersey Supreme Court to reverse the decision of the appellate division and clarify that an expert must present a sound methodology to ensure reliability of the opinions he or she intends to offer at trial.

The DRI amicus brief was authored by Mary Massaron and Hilary A. Ballentine of Plunkett Cooney PC in Bloomfield Hills, Michigan.  Ms. Massaron is a past president of DRI.  Ms. Ballentine is the immediate past president of the Michigan Defense Trial Counsel. Both are available for interview or expert comment through the contact information above.

For the full text of the brief, click here

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About DRI – The Voice of the Defense Bar

For more than fifty-five years, DRI has been the voice of the defense bar, advocating for 22,000 defense attorneys, commercial trial attorneys, and corporate counsel and defending the integrity of the civil judiciary. A thought leader, DRI provides world-class legal education, deep expertise for policy-makers, legal resources, and networking opportunities to facilitate career and law firm growth. For more information, log on to www.dri.org

Issue Is the Standard for Admissibility of Expert Testimony

CHICAGO ­– (March 1, 2018)— DRI – The Voice of the Defense Bar has submitted a brief to the New Jersey Supreme Court regarding In Re Accutane Litigation, involving the standard for admissibility of expert testimony. The brief was submitted by DRI’s Center for Law and Public Policy.

The petition was filed by defendants Hoffmann-La Roche Inc. and Roche Laboratories Inc., the manufacturers of prescription acne drug Accutane, to determine whether New Jersey should expressly adopt Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), or otherwise clarify New Jersey’s rules regarding the standards for admissibility of expert testimony. 

Roche successfully moved in the trial court to exclude the testimony of plaintiffs’ causation experts for failing to utilize a reliable methodology to reach their causation opinions, which linked Accutane and Crohn’s disease. The appellate division issued a published opinion reversing the trial court’s decision. The Supreme Court of New Jersey has framed the issue as whether the trial court erred “in barring as scientifically unreliable the testimony of plaintiffs’ expert witnesses?”

Supporting Roche, the DRI amicus brief urges the New Jersey Supreme Court to clarify that only expert testimony based on reliable, scientific methodology, and reliably applied to the facts of the case, is admissible at trial.  While expert testimony is typically necessary in complex mass tort actions and often helpful to the jury in reaching a just outcome, it can be harmful when not properly controlled. 

Psychological research indicates that when jurors are asked to decide complex scientific matters, they often rely on the credentials of an expert and the expert’s “likeability” as the basis for evaluating expert testimony, rather than focusing on whether the expert’s methodologies are scientifically unsound and unreliable, which they may not be competent to judge.  Accordingly, the trial courts need to fulfill their “gatekeeping” responsibility by preventing unreliable expert testimony from reaching the jury.

           The DRI amicus brief warns that allowance of unreliable expert testimony, not grounded in reliable scientific methodology, leads to unjust results that often cannot be corrected on appeal. For these and other reasons, the DRI amicus brief urges the New Jersey Supreme Court to reverse the decision of the appellate division and clarify that an expert must present a sound methodology to ensure reliability of the opinions he or she intends to offer at trial.

The DRI amicus brief was authored by Mary Massaron and Hilary A. Ballentine of Plunkett Cooney PC in Bloomfield Hills, Michigan.  Ms. Massaron is a past president of DRI.  Ms. Ballentine is the immediate past president of the Michigan Defense Trial Counsel. Both are available for interview or expert comment through the contact information above.

For the full text of the brief, click here

###

About DRI – The Voice of the Defense Bar

For more than fifty-five years, DRI has been the voice of the defense bar, advocating for 22,000 defense attorneys, commercial trial attorneys, and corporate counsel and defending the integrity of the civil judiciary. A thought leader, DRI provides world-class legal education, deep expertise for policy-makers, legal resources, and networking opportunities to facilitate career and law firm growth. For more information, log on to www.dri.org