New Jersey’s Supreme Court has the opportunity to get rid of junk science dressed up as expert testimony in product liability lawsuits. New Jersey’s business groups, including NJBIA, are urging them to do so.
The issue involves what qualifies as expert testimony. Thirty-nine states and the federal courts use what’s known as the Daubert standard, which is used by trial judges to determine whether an expert’s scientific testimony is based on reasoning or methodology that is scientifically valid and can properly be applied to the facts at issue. In New Jersey, however, judges are required to be the gatekeepers, but do not have as clear a standard to apply.
The stakes are high. New Jersey’s pharmaceutical companies are frequent targets of product liability cases, often brought by out-of-state plaintiffs, since their experts would be prohibited from testifying in many other jurisdictions. The cases often are class actions, so potential damages could be big.
A friend-of-the-court brief on behalf of business argues that adopting the Daubert standard would ensure that “only reliable and reliably applied expert testimony” is allowed a trial. The brief was written by McCarter & English attorneys David Kott, who is NJBIA’s Legal Affairs Committee Chairman, Edward Fanning and Gary Tulp.
The case in question illustrates how unpredictable New Jersey’s standard is. A trial judge barred two expert witnesses for testifying in a lawsuit alleging that Accutane caused Crohn’s disease. The judge eventually dismissed 2,000 of the 2,500 cases involved.
“In a state whose citizens rely so heavily on its substantial community of innovators, the important of ensure a fair and reliable expert-admissibility standard cannot be overstated,” the business amicus brief concludes.