New Jersey’s court rule governing the admissibility and review of expert testimony has remained unchanged since 1991. In this same period the Federal Rules of Evidence, the Uniform Rules of Evidence, numerous state evidence rules, and our own case law have all changed to reflect the increased importance and use of expert testimony. At NJCJI’s urging, the NJ Supreme Court asked its Committee on the Rules of Evidence to take a closer look at the state’s laws governing this issue.
The court asked the committee to determine:
- (1) If “N.J.R.E. 702 and related case law are so unclear that New Jersey’s trial courts are applying inconsistent standards in admitting expert testimony” and,
- (2) “whether current law is creating other problems, such as attracting a disproportionate number of negligence cases to the State, especially mass tort cases, that might otherwise be filed in other jurisdictions.”
The committee has just released its report answering the court’s questions. Below is a summary of the committee’s answer to each of the questions above, a summary of other highlights from the report, and information on how to submit your comments about the report to the court.
Is the law so unclear that New Jersey’s trial courts are applying inconsistent standards in admitting expert testimony?
The committee determined that the state’s existing rule, N.J.R.E. 702, “is not unclear or otherwise preventing the development of the law in this area.” However, the committee points out that in order to fully grasp the state’s law governing admissibility, you have to look beyond the text of the rule to the cases State v. Kelly, 478 A.2d 364 (1984); Rubanick v. Witco Chemical Corp., 593 A. 2d 733, (1991); Landrigan v. Celotex Corp., 605 A.2d 1079 (1992); Kemp ex rel. Wright v. State, 809 A.2d 77 (2002); and Hisenaj v. Kuehner, 942 A.2d 769 (2008).
The mismatch between the text of N.J.R.E. 702 and the controlling case law puts the state in the same position the federal courts were in prior to the 2000, when the Federal Rules of Evidence were updated to incorporate the Daubert trilogy’s rulings on reliability.
The committee notes that at this point, it is up to the court to determine what the next steps should be. The court can do nothing, allowing the case law to continue to develop while the text of the rule remains the same; adopt Daubert via case law; or direct the committee to draft a rule change.
Is current law creating other problems, such as attracting a disproportionate number of negligence cases to the State, especially mass tort cases, which might otherwise be filed in other jurisdictions?
The committee determined there is not enough evidence to conclude that the current state of the law is negatively impacting the state’s litigation climate. They felt that McCarter & English’s 2008 study showing 93% of the mass tort cases filed in our state courts were filed by non-New Jersey residents was insufficient to indicate a trend since data from other states was not included in the study, and other factors, such as the state’s summary judgment law, were not controlled for.
- The report provides a summary of the law governing the admissibility of expert opinion evidence in each of the 50 states.
- All of the appellate court decisions related to Rule 702 are summarized by the report.
- The report includes a table summarizing the number of specific types of cases where expert testimony is likely filed over time.
The Supreme Court will conduct a public hearing on the report in late May and will be acting on the reports and recommendations in June-July, with any rule amendments likely to become effective September 1, 2015.
NJCJI is submitting written comments, and plans on participating in the public hearing.
If you believe as we do that this report confirms it is time for our state to amend its evidentiary rules to keep junk science out of the courtroom and stem the tide of out-of-state plaintiffs flooding into the state, now is the time to speak up! The court is accepting public comments on the report until Friday, April 10, 2015.
Written comments can be sent via email to Comments.Mailbox@judiciary.state.nj.us or mailed to
Glenn A. Grant, J.A.D.
Acting Administrative Director of the Courts
Hughes Justice Complex; P.O. Box 037
Trenton, New Jersey 08625-0037
All comments are considered public record, and anonymous comments will not be considered.
If you have any questions about the report or the public comment process, please contact a member of the NJCJI team.