Preparation for a big Appellate Division argument at the end of February limited my ability to post for a period of time. But our courts were busy during that time. Here are summaries of two published opinions issued by our Supreme Court in the last half of February. Another post will catch up, at least in part, with decisions of the Appellate Division during that time.
State v. Olenowski, ___ N.J. ___ (2023). This unanimous opinion by Chief Justice Rabner changed the landscape for the admission of expert testimony in criminal and quasi-criminal cases. Our courts had long employed in such cases the “general acceptance” test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). That continued to be so even as our Supreme Court moved away from Frye in the civil context beginning in the early 1990’s, foreshadowing the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which liberalized the admission of expert testimony and made “general acceptance” only one of several factors to be considered. (The Daubert factors, which our Supreme Court imported into at least some civil cases in In re Accutane Litigation, 234 N.J. 340 (2018), a case that I argued, are discussed here). In Olenowski, our Supreme Court abandoned Frye and adopted the Daubert factors for criminal and quasi-criminal cases. The Chief Justice’s detailed opinion is well worth reading in full.
Statewide Insurance Fund v. Star Insurance Co., ___ N.J. ___ (2023). The question in this case was whether a public entity joint insurance fund (“JIF”) provides “insurance” to its members, or whether a JIF is in fact “self-insurance.” The import of that question on this case was that defendant’s insurance policy provided that its coverage would commence only once “other insurance” has been exhausted. In a unanimous opinion by Justice Fasciale, the Court held that the JIF provides “self-insurance,” not “insurance,” so that defendant’s coverage was primary. “Under the plain language of N.J.S.A. 40A:10-48, a JIF ‘is not an insurance company or an insurer under the laws of this State’ and its ‘authorized activities . . . do not constitute the transaction of insurance nor doing an insurance business.’”