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Will Your Scientific Expert Pass The Test?   
        Scientific expert testimony, especially in pharmaceutical, engineering and other technological fields, must pass court scrutiny to be admissible in evidence. For years the federal and state courts followed the Supreme Court case of Frye v. United States, holding that such expert opinions must be based upon “generally accepted” science. In 1993 the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., in which the Court set out a number of standards to be considered by the federal trial courts, which are to act as gatekeepers of expert opinion testimony. Many states have adopted the Daubert ruling outright. New York continues to follow Frye, while New Jersey has taken steps in the direction of Daubert. In the case of In Re Accutane Litigation, the New Jersey Supreme Court adopts the Daubert standards for scientific expert testimony. 

        Accutane is a medication approved by the FDA to treat recalcitrant nodular acne. Plaintiffs in a mass tort litigation claimed that there is a causal association between Accutane and Crohn’s Disease, a chronic gastrointestinal illness. The New Jersey high court ruled that the flexible standards set forth in Daubert should be utilized in determining whether scientific expert testimony is admissible in a civil case. The court stated that the Daubert factors are useful to a trial court’s gatekeeping function. The court affirmed the trial judge’s ruling that the plaintiffs’ scientific expert opinions do not meet the test to be heard by the jury.

        Plaintiffs’ expert relied upon case reports, animal studies, and his own “biological mechanism” hypothesis to draw a relationship between Accutane and Crohn’s. Defendants presented expert opinion based upon epidemiological studies – preferred by the scientific community over unsystematic clinical observations – there was no statistically reliable information linking Accutane and Crohn’s. Defendants sought to bar plaintiffs’ scientific expert opinion, and the New Jersey Supreme Court agreed, affirming the trial court’s rigorous gatekeeping, necessary “when faced with a novel theory of causation . . . that flies in the face of consistent findings of no causal association as determined by higher levels of scientific proof.”

        Because New Jersey had already begun to move away from Frye in its holdings in recent years, the state supreme court deemed it appropriate to adopt the Daubert standards without fully declaring New Jersey a Daubert Jurisdiction.  

© August 2018, Law Offices of John C. Lane 

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