Another Accutane Decision, and a Big Win for Plaintiffs

, 451 N.J. Super. 153 (App. Div. 2017).  [Disclosure:  I was one of the counsel who argued this appeal for the successful plaintiffs].  This must be Accutane week.  On Tuesday, Judge Fisher’s panel issued a 100-page opinion, discussed , which reversed a decision of the Law Division under the New Jersey Product Liability Act, regarding the adequacy of warnings on Accutane.  Today, in a published opinion, Judge Reisner authored an 84-page opinion that reversed the Law Division’s ruling, after a Kemp v. State hearing, that excluded plaintiffs’ experts in cases regarding Crohn’s disease and went on to grant summary judgment against thousands of Crohn’s disease plaintiffs.  Today’s decision held that plaintiffs’ experts had employed accepted methodologies, and rejected the Law Division’s view that those distinguished experts were mere “hired guns” who were on a “mission” to support plaintiffs regardless of the science.

Judge Reisner’s opinion exhaustively described the science, the opinions of the experts in question, and the legal standards. She then carefully applied those legal standards to the facts and circumstances of this appeal.  She emphasized that the panel was not placing its “imprimatur on or on their opinions.  The experts on both sides are highly reputable scientists, who view the evidence differently.”  The Law Division, she said,”went beyond its gatekeeping function …. improperly determined the weight and credibility of the experts’ testimony[, …. and] mistakenly exercised discretion in barring the experts’ testimony.”

Judge Reisner’s encyclopedic opinion is an instant classic (a view that I would express even had I not argued for the winning side).  Its discussion of the nature, use, and proper treatment by experts, of epidemiological studies and other categories of evidence is highly useful not only for Accutane cases, but for other mass torts where expert testimony may be contested.  Perhaps one of the single most important takeaways from the opinion is the reminder that “the purpose of a Kemp hearing is to weed out ‘junk science,’ not to shield jurors from hearing expert testimony that is scientifically-based but unpersuasive to the trial judge.”