United States: New Jersey Supreme Court Moves Closer To Daubert Standard For Admissibility Of Expert Testimony

Last Updated: August 6 2018
Article by Paul Halasz, Christopher J. Stracco and Benjamin E. Haglund

In a seminal ruling handed down on August 1, the New Jersey Supreme Court held that trial courts must assess the scientific reliability of an expert's proposed testimony by considering a number of factors developed under the federal Daubert standard. The Supreme Court, in In re Accutane Litigation, Docket No. 079958, not only clarified the standard for admissible expert testimony in a toxic tort/medical causation case but also addressed the standard by which the Appellate Division is to review trial court determinations on expert opinion admissibility in civil cases. The holding will provide opportunities to limit the number of cases that will be presented to a jury based on novel or not widely accepted theories of causation.

The underlying dispute involved the plaintiff's claim that a causal connection existed between the prescription medication Accutane, which is used in the treatment of certain acne conditions, and Crohn's disease, a chronic gastrointestinal illness. Plaintiff's experts relied on evidence such as animal studies and case reports to arrive at their opinion, while rejecting a number of epidemiological studies that concluded Accutane is not causally associated with the development of Crohn's disease. Defendant's experts opined that epidemiological studies are preferred to case reports in the hierarchy of medical evidence.

The trial court held a preliminary hearing on the admissibility of the expert testimony associating Accutane and Crohn's disease. Following the hearing, the trial court excluded plaintiff's experts' testimony, finding it lacking, conclusion driven, and dismissive of better evidence that was contrary to their opinions. The Appellate Division reversed the trial court, finding that although a trial court's decision to admit or exclude evidence is subject to the abuse of discretion standard, less deference should be accorded by the Appellate Division in connection with the trial court's determinations regarding expert testimony. 451 N.J. Super. 153, 163-64, 211 (App. Div. 2017).

The Supreme Court reversed the Appellate Division, thereby reinstating the trial court's exclusion of plaintiffs' expert testimony. The Supreme Court noted that New Jersey was in the "vanguard of courts to be persuaded that adherence to the Frye [v. United States, 293 F. 1013 (D.C. Cir. 1923)] general acceptance standard as the sole test for assessing reliability of scientific expert testimony was unsatisfactorily constricting for fairly assessing reliability in certain areas of novel or emerging fields of science." New Jersey's standard was broadened in the context of toxic tort litigation by the court's decision in Rubanick v. Witco Chemical Corp., 125 N.J. 421 (1991), which held that the proper reliability inquiry was whether others in the field used similar methodologies.

However, unlike other jurisdictions, New Jersey never adopted the so-called Daubert standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which has been accepted by a majority of states either explicitly or implicitly. The Daubert standard provides a multifactor test to determine whether a qualified expert would be permitted to testify and is essentially set forth in Federal Rule of Evidence 702.

Although the Supreme Court did not officially declare New Jersey a Daubert jurisdiction, it nevertheless indicated that "in respect of the gatekeeping role, we emphasize that we expect the trial court to assess both the methodology used by the expert to arrive at an opinion and the underlying data used in the formation of the opinion." Importantly, it noted that "[m]ethodology, in all its parts, is the focus of the reliability assessment, not outcome." The court identified the following Daubert factors "as pertinent for consideration, but not dispositive or exhaustive:"

(1)  Whether the scientific theory can be, or at any time has been, tested;

(2)  Whether the scientific theory has been subjected to peer review and publication, noting that publication is one form of peer review but is not a "sine quo non;"

(3)  Whether there is any known or potential rate of error and whether there exist any standards for maintaining or controlling the technique's operation; and

(4)  Whether there does exist a general acceptance in the scientific community about the scientific theory.

In so doing, the court stated, "[i]t is not for a trial court to bless new 'inspired' science theory; the goal is to permit the jury to hear reliable science to support the expert opinion."

Lastly, the Supreme Court held that the Appellate Division, in reversing the trial court, "veered off" the appropriate standard of review. The court reaffirmed that "the abuse of discretion standard applies in the appellate review of a trial court's determination to admit or deny scientific evidence on the basis of unreliability in civil matters." In such cases, "the trial court has been entrusted with methodology-based review as the gatekeeper of expert testimony." The court found no governing legal authority in New Jersey for a "less-deferential standard" in civil matters, as had been applied by the Appellate Division.

The decision is likely to have a significant impact on toxic tort and medical causation cases in which a plaintiff's expert seeks to offer a scientific opinion connecting an injury or illness with a specific drug, chemical substance or environmental condition. In such cases, experts will be required to justify their conclusions by reference to tested, reliable methodologies, and courts will assess the admissibility of their testimony based on factors including whether there is a general acceptance in the scientific community about the expert's theory. The new standard adopted by the Supreme Court set a higher bar for the admissibility of such testimony and should reduce the number of cases that proceed to trial on the basis of novel or untested scientific claims of causation.

Click here to read further Insights from Day Pitney

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Paul Halasz
Christopher J. Stracco
Benjamin E. Haglund
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions