Earlier this week Superior Court Judge Nelson Johnson released an evidentiary ruling blocking two experts from testifying in the ongoing litigation over Hoffmann-La Roche Ltd.’s acne medication Accutane. The ruling is further evidence that Atlantic County is not the mass tort hellhole it once was.


In 2003, plaintiffs began filing lawsuits against the makers of the acne drug Accutane alleging it caused inflammatory bowel disease (IBD), Crohn’s disease, ulcerative colitis, and other gastrointestinal issues. The cases were consolidated into a multicounty litigation in May 2005, and the litigation is ongoing. This week’s ruling relates to cases where the plaintiffs are alleging they developed Crohn’s disease, a specific type of IBD, from taking Accutane.


This January, defendants Roche and Hoffmann-La Roche filed a motion seeking to block the testimony of two plaintiffs’ experts: Dr. Arthur Kornbluth, a gastroenterologist who teaches at the Mount Sinai Medical School, and Dr. David Madigan, an expert in biostatistics at Columbia University.


Johnson summarized the arguments of the parties as follows:


“Defense counsel argues that based upon the most recent authoritative studies, there is no reliable scientific evidence to support Plaintiffs’ contention, and that Plaintiffs’ experts must therefore be barred from testifying at trial in support of that contention. In reply, Plaintiffs argue that their experts are qualified by education, training, and experience and that their opinions are reliable because they are based on a sound scientific methodology, involving the type of information relied upon by experts in their field.”


Johnson conducted a preliminary hearing on the challenged expert testimony, following the guidelines set out by the New Jersey Supreme Court in Kemp v. State of New Jersey. In addition to hearing live testimony, Johnson requested the parties send him “all such reports, abstracts, peer-reviewed studies, etc. (“treatises” or “scientific literature”) relied upon by the witnesses in formulating their opinions.” The 400+ items provided also informed his decision.


After weighing the evidence presented, Johnson determined Kornbluth and Madigan’s testimony was inadmissible. Though they are “exceptionally learned and accomplished professionals,” Johnson concluded their testimony suffered from “multiple deficiencies,” especially their “finely tuned selectivity of the evidence on which they rely.”


It is one thing to “stand alone in the world of science by advancing a hypothesis that others do not accept,” but “quite another thing to advance a hypothesis that can only be supported by disregarding valid scientific research,” Johnson said.


Johnson’s ruling starkly contrasts rulings by his predecessor, Judge Carol Higbee. In 2008, Higbee allowed expert testimony on causation in the mass tort litigation over Accutane even though the federal judge in the Accutane Multi-District Litigation had ruled there was no scientific basis for similar testimony.


Thanks in part to Higbee’s leniency when it came to letting in expert evidence, Atlantic County was identified as a Judicial Hellhole by the American Tort Reform Association.


Johnson took over the Accutane cases last September after Higbee was appointed to the appellate division. Since that time, he has dismissed a slew of Accutane cases. In October, he dismissed four bellwether cases on statute-of-limitations grounds. In December, he dismissed over 600 suits for failure to comply with discovery.


Johnson has directed defense counsel to provide him with a list of lawsuits they believe will be impacted by his current ruling by March 6. According to Law360, “[a]ttorneys estimate that 2,500 to 3,000 of the more than 6,700 suits in the litigation would be affected.”


The plaintiffs’ attorneys have indicated they will appeal Johnson’s ruling, so NJCJI will continue to follow this case.


The difference between judges Higbee and Johnson’s evidentiary rulings are of particular interest in light of the recent report from the Committee on the Rules of Evidence regarding the state’s standards for expert testimony. We believe the reforms we have proposed would help reduce these types of disparities.