In re Accutane Litigation, 234 N.J.340 (2018). [Disclosure: I argued this appeal, together with co-counsel, on behalf of the plaintiffs. The opinions expressed in this post are mine alone, and are not attributable to or necessarily reflective of the views of other counsel for plaintiffs in the matter.]. Today, in a 6-0 opinion by Justice LaVecchia, the Supreme Court reversed the decision of the Appellate Division, reported at 451 N.J. Super. 153 (App. Div. 2017), and discussed , that had found that the Law Division “mistakenly exercised discretion” in excluding plaintiffs’ experts in this mass tort matter. There is ample room to disagree with the Court’s ruling as to this particular case, but it is the highest Court, and is therefore final.
There are some larger takeaways from the opinion. First, the Court took the opportunity to “reaffirm that the abuse of discretion standard applies in the appellate review of a trial court’s determination to admit or deny scientific expert testimony on the basis of unreliability in civil matters.” Citing dicta in the Appellate Division’s decision that reviewing courts owe “somewhat less deference to a trial court’s determination” regarding expert testimony, the Court stated that the Appellate Division had been “persuaded to veer off that [abuse of discretion] standard of review.” In fact, the Appellate Division had said, in more than one place, that the Law Division had “mistakenly exercised” or “misapplied” its discretion. Nonetheless, any doubt that the abuse of discretion standard of review is applicable in this context has been removed by the Court’s opinion today.
Second, the Court announced that, “as a means to bring greater consistency to the gatekeeping function,” it was “adopting the use of” factors enumerated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Those factors, “identified as perhaps pertinent for consideration, but not dispositive or exhaustive,” are (1) whether the scientific theory has been or can be tested, (2) whether the theory has been subjected to peer review and publication (but “noting that publication is one form of peer review but is not a ‘sine qua non'”), (3) whether there is any known or potential rate of error and whether there are any standards for maintaining or controlling the technique’s operations, and (4) whether there is general acceptance of the theory in the scientific community.
However, Justice LaVecchia cautioned that the Court would “stop short of declaring ourselves a ‘Daubert jurisdiction.’ Like several other states, we find the factors useful, but hesitate to embrace the full body of Daubert case law as applied by state and federal courts.” She gave two reasons for that conclusion.
“First, we have already broadened our approach to testing for the reliability of expert testimony for certain areas in civil law, but, to date, we retain the general acceptance test for reliability in criminal matters. Second, there is no monolithic body of case law uniformly or even consistently applying Daubert, as others have noted. We hesitate to sweep in adherence to the various approaches taken among the circuits and state jurisdictions when applying the Daubert factors. Thus, we do not adopt a ‘standard’ that we cannot fully discern in its application at this time. While the factors are helpful, and while individual cases may be persuasive in appropriate settings, we cannot ignore that there are discordant views about the gatekeeping role in Daubert jurisdictions” (citations omitted).
Before today, New Jersey’s caselaw, beginning with Rubanick v. Witco Chemical Corp., 125 N.J. 421 (1991), a decision that came two years before and actually foreshadowed the Daubert opinion itself in its liberalization of the standards for expert scientific testimony, established wise parameters. After Daubert, state court parties always had the ability to cite the Daubert factors, which even that case carefully stated were not mandatory or applicable in every case, as persuasive in given circumstances. Similarly, parties could always cite factually comparable cases decided under Daubert as persuasive authority. Today’s decision merely formalizes those practices.
The Court rightly declined to become a “Daubert jurisdiction.” As Justice LaVecchia observed, and as plaintiffs had contended, there is no one “Daubert.” Different jurisdictions have gone in different directions, including taking positions that in fact contravene the Daubert decision itself (and Rubanick) by substituting their own scientific judgment for those of actual scientists and unreasonably restricting expert testimony. Today’s decision correctly retains Rubanick and its progeny, which have remained true to the ideas expressed in Daubert.
Finally, lower courts must avoid being led by some stray language in today’s decision into betraying the principles of Rubanick. For example, the Court referred in two places to the idea that gatekeeping should be “rigorous.” Parties might seize on such language in future cases to persuade courts to become goalkeepers instead of gatekeepers. Gatekeepers determine who to allow in, while goalkeepers (as even non-soccer fans learned during the recent World Cup) seek not to let anything past them. Nothing in the Court’s decision today authorizes, or even suggests, that trial level judges should become goalkeepers.