In re: Accutane, New Jersey Supreme Court (2018)

The New Jersey Supreme Court has recently brought the State nearly in line with the federal courts and 39 other states which apply guidance for trial judges called upon to consider the admissibility of expert testimony. In In re: Accutane, the Supreme Court dismissed consolidated cases involving that product, and in doing so, took the opportunity to clarify and change the more relaxed New Jersey standard for admissibility of expert opinions that had been followed for decades in New Jersey courts. The standard is now more in line with the Daubert standard adopted by the U.S. Supreme Court in the 1990s and periodically explained and elaborated upon since then.

Using the enhanced standard for admissibility now required in exercising its gatekeeping function, the trial court must be satisfied that the proponent of the opinion testimony has demonstrated that: (1) the scientific theory upon which the opinion is based can be tested; (2) the theory has been the subject of publication and peer review; (3) the known or potential error rate; and (4) general acceptance of the theory in the scientific community. These are non-exclusive considerations which may or may not apply to a particular theory in a particular scientific domain, and there may be other factors which a court may apply in specific circumstances.

The Supreme Court also reaffirmed that in most cases, a decision by the trial judge on the admissibility of expert opinions is subject to the abuse of discretion standard, meaning that an appellate court asked to review a trial court’s admissibility determination will give deference to the decision below.

This ratchets up the standard for admissibility of expert opinions and will make it more difficult for plaintiffs seeking to advocate for opinions at the edge of scientific acceptance to prove their cases in New Jersey. The result will be more expert opinions rejected by trial courts and a friendlier venue for defendants.

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