NEW JERSEY SUPREME COURT EXPANDS APPLICATION OF FLEXIBLE STANDARD FOR ADMISSION OF SCIENTIFIC EVIDENCE ON CAUSATION

The New Jersey Supreme Court recently missed the opportunity to strengthen the standards for admissibility of scientific evidence on causation in toxic tort cases.  As companies facing such claims are aware, causation is often a key issue.  In Kemp v. State of New Jersey, 2002 WL 1901333, *12 (N.J. August 20, 2002), the Court failed to adopt the more specific and rigorous criteria applied by the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  The Court, instead, retained and expanded the application of the flexible standard applied since its 1991 decision in Rubanick v. Witco Chemical Corp., 125 N.J. 421 (1991).  This generally favors plaintiffs because the Rubanick standard is, above all else, a more liberal one that readily opens the door to novel theories of causation.

Historically, the determination of admissibility turned on whether or not the theory or technique had gained "general acceptance" in the relevant community.  See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  In Frye, the court imposed a stringent burden, which excluded evidence of novel theories of causation that had yet to gain “general acceptance” in the scientific community.

Thereafter,in 1975, Federal Rule of Evidence 702 addressed the admissibility of scientific evidence.  This Rule provides that, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education" may testify in the form of an opinion or otherwise. In 1993, the United States Supreme Court determined, in Daubert, that the "general acceptance" test or Frye rule developed at common law had been superceded by the Federal Rules of Evidence.  In interpreting Rule 702, the Supreme Court established the following guidelines for the trial judge, as gatekeeper, to consider at an evidentiary hearing to determine whether the theory and methodology are relevant and reliable: 1) whether the evidence is scientific knowledge; 2) whether the expert’s hypothesis can be tested; 3) whether the methodology is subject to peer review and publication; 4) whether there is a known or potential rate of error for the methodology; 5) whether standards exist and are maintained for controlling the technique’s operation; and 6) whether the methodology has been accepted in the scientific community (carry-over from Frye).

State courts, however, are not bound by either the Frye or Daubert rules. Indeed, though New Jersey Rule of Evidence 702, tracks Federal Rule 702, verbatim, the applicable standard in New Jersey is somewhat different. In Rubanick and Landrigan v. Celotex Corp., 127 N.J. 404 (1992), prior to the United States Supreme Court decision in Daubert, the New Jersey Supreme Court adopted its own more flexible standard for toxic tort matters. [i]

Specifically, in Rubanick, the Court held that a novel causation theory "may be found to be scientifically reliable if it is based on a sound, adequately—founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field."  Id., 125 N.J. at 449.[ii]

The appropriate inquiry becomes whether comparable experts in the field would actually rely on that information and not whether the court finds an expert's reliance on the underlying data to be reasonable.  In applying the methodology-based approach, the New Jersey Supreme Court instructed that the trial court should consider whether others in the field used similar methodologies, and should also consider factors that are typically relied upon by medical professionals such as medical tests, patient examinations and scientific literature.  Id., 125 N.J. at 449-50. 

Conceivably, an expert’s opinion that is based upon methodology relied upon by even one other individual in the same scientific field can be admitted.  Unlike the Daubert standard, the trial court need not consider several other factors such as whether the expert’s hypothesis can be tested, whether the methodology is subject to peer review and publication, and whether the methodology has actually been accepted in the scientific community. 

While the application of the Rubanick standard was reserved for traditional toxic tort matters, recently, in Kemp, the New Jersey Supreme Court extended its application to the area of pharmaceutical products/prescription drugs and implicitly to all tort cases where a medical cause-effect relationship has not been confirmed by the scientific community, but compelling evidence nevertheless suggests that such relationship exists.  Consistent with several prior opinions subsequent to the Daubert decision, the Court in Kemp acknowledged Daubert and cited it favorably, but continued to rely upon its own standard rather than adopt the Daubert approach.  Clearly, both are methodology-based standards.  The criteria in Daubert, however, are more thoroughly articulated and stringent than the general considerations identified in Rubanick, Landrigan and Kemp.  As such, the Daubert standard provides a better framework for litigants challenging the admissibility of an expert’s opinion, as well as for a court in ruling upon such admissibility.

In Kemp, plaintiffs alleged that defendants administered a rubella vaccine to plaintiff, Debra Kemp, an expectant mother, causing her daughter, plaintiff Delisha Kemp, to develop Congenital Rubella Syndrome (“CRS”).  Plaintiffs further alleged that defendants failed to ascertain whether Debra Kemp was pregnant or sexually active and that she was not informed that she should not have been vaccinated if she were pregnant because of the possibility of birth defects to an unborn child.  Based upon the plaintiffs’ expert’s deposition testimony, defendants moved for summary judgment on the grounds that the expert failed to proffer a scientifically acceptable basis for his opinion that the rubella immunization caused the child to develop CRS and that the opinion was therefore unreliable.  In finding for defendants, the trial court ruled that the opinion was inadmissible leaving plaintiffs unable to prove their prima facie case.  The Appellate Division affirmed the ruling reasoning that the expert failed to apply any methodology at all in reaching his conclusion as he acknowledged that no study, report, medical journal, treatise, epidemiological or toxicology data or other data had demonstrated a correlation between attenuated rubella vaccines and CRS in a child born with CRS.  As such, his opinion was not based on scientifically tested and accepted methodology recognized by the medical community. 

On review, the Court reversed and remanded the matter on the grounds that the failure to conduct an evidentiary hearing on the reliability of the expert's opinion was plain error.  Significantly, the Court agreed that the current form of the expert's opinion was not admissible, but chose to give plaintiffs another bite at the apple.

In applying the Rubanick standard, the Court concluded that the records revealed that the expert's methodology was not scientifically sound.  Nonetheless, the Court found that the failure to conduct a hearing may have adversely affected plaintiffs’ ability to present their expert's testimony in its best light as it was given at a deposition without the benefit of an orderly and comprehensive presentation elicited by plaintiffs’ counsel at a hearing.  Significantly, the Court noted that while the parties did not request one, the failure to conduct an evidentiary hearing was plain error.

In Kemp, the New Jersey Supreme Court unfortunately declined an opportunity to simply adopt the Daubert standard, which provides more specific and objective guidelines than the Rubanick standard.  However, the Court’s reference to Daubert strongly suggests that it is appropriate for trial courts to incorporate the more definitive Daubert criteria in analyzing the admissibility of expert testimony.  It is clear from the Kemp decision, moreover, that a successful challenge to an expert’s novel theory of causation cannot be made without providing the proponent of the expert’s opinion an opportunity to prove its admissibility at a hearing.

[AUTHOR BIO DATA] Timothy E. Corriston and Angela A. Iuso are Connell Foley LLP partners and members of the firm's Environmental Law, Mass Tort/Toxic Tort, and Products Liability Practice Groups.  Both Mr. Corriston and Ms. Iuso are admitted to practice in New York and New Jersey.  They can be reached at (973) 535-0500 or by e-mail at tcorriston@connellfoley.com and aiuso@connellfoley.com.  Christine A. Sanz, an associate at Connell Foley LLP, assisted in preparing this article.

[i]Former New Jersey Court Rule 56(2) controlled at that time. The adoption of New Jersey Court Rule 702 made only minor changes to former Rule 56(2). Critically, the Comment provides that the new Rule 702 intends to incorporate New Jersey case law establishing the general criteria for the admission of expert testimony.

[ii]New York courts have continued to apply the Frye standard. People v. Wesley, 83 N.Y.2d 417, 435, 611 N.Y.S.2d 97, 107 (1994).

About Us | Practice Areas | News | Attorneys | Publications
| Contact