Judicial gatekeeping on expert testimony is often discussed as a concern about junk science – with an implication that anything not plainly lacking in scientific basis is a mere question of persuasiveness that should therefore go to the jury. The New Jersey Appellate Division recently took that concept to its extreme conclusion, holding that whenever a well-credentialed expert relies on some sort of scientific data and can offer an explanation for his conclusions, that testimony must be admitted, no matter the methodological flaws. Those flaws go merely to the strength of the testimony, the panel determined, and weaknesses can be exposed on cross examination and countered by other experts. As a result, the trial judge’s studied judgment to bar flawed expert testimony in the ongoing In re Accutane Litigation was reversed.
A selection of the need-to-know civil justice news for December 9-15.
A selection of the need-to-know civil justice news for September 30-October 6.
New Jersey is an outlier. Though nearly 40 states and the federal court system have adopted similar rules governing the admissibility of expert evidence, New Jersey has stuck with an older rule.
A selection of the need-to-know civil justice news for September 23-29.
A selection of the need-to-know civil justice news for August 26-September 1.
The Appellate Division has issued a significant published opinion in the ongoing legal battle over the acne drug Accutane. Over 2,000 claims were revived by this decision. If upheld by the New Jersey Supreme Court, the long-term effects of the decision will be even more significant, as it all but eliminates the existing, critical gate-keeping role of trial court judges on admissibility of expert testimony.
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New Jersey’s rules regarding the admissibility and review of expert testimony have 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 jurisprudence have all changed to reflect the increased importance and use of expert testimony. The disconnect between the rules on the books and the realities of practice were on full display at the New Jersey Supreme Court’s May 19, 2015 hearing on the Committee on the Rules of Evidence’s latest report.