In a much-anticipated decision, the New Jersey Supreme Court just issued its opinion in In re Accutane. The text of the opinion is available here. The Court considered and clarified the New Jersey state court standard for “the admissibility of scientific evidence under the New Jersey Rules of Evidence.” In re Accutane, at p.3. While not adopting all of the mixed precedents covering the standard expressed in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and its progeny, the Court clarified the New Jersey standard by declaring:
We perceive little distinction between Daubert’s principles regarding expert testimony and our own and believe that its factors for assessing the reliability of expert testimony will aid our trial courts in their role as the gatekeeper of scientific expert testimony in civil cases. Accordingly, we now reconcile our standard under N.J.R.E. 702, and relatedly N.J.R.E. 703, with the federal Daubert standard to incorporate its factors for civil cases.
[In re Accutane, at pp. 5-6] ***
Importantly, both our law and the Daubert trilogy are aligned in their general approach to a methodology-based test for reliability. Both ask whether an expert’s reasoning or methodology underlying the testimony is scientifically valid. [Citations omitted]. Moreover, both standards look to whether that reasoning or methodology properly can be applied to facts in issue. [Citations omitted].
Importantly, Daubert identified a non-exhaustive list of factors for courts to consider using, if helpful, when it expanded on its test for assessing the reliability of scientific expert testimony. [Citation omitted]. Distilled, the general factors identified as perhaps pertinent for consideration, but not dispositive or exhaustive, are:
- Whether the scientific theory can be, or at any time has been, tested;
- Whether the scientific theory has been subjected to peer review and publication, noting that publication is one form of peer review but is not a “sine qua non”;
- Whether there is any known or potential rate of error and whether there exist any standards for maintaining or controlling the technique’s operation; and
- Whether there does exist a general acceptance in the scientific community about the scientific theory.
That last consideration — general acceptance in the scientific community — continues to have a bearing because, minimally, it permits the identification of a relevant scientific community and facilitates an express determination of a particular degree of acceptance within that community, or contrarily permits a technique with minimal support to be viewed with skepticism. [Citation omitted].
We are persuaded that the factors identified originally in Daubert should be incorporated for use by our courts. The factors dovetail with the overall goals of our evidential standard and would provide a helpful — but not necessary or definitive — guide for our courts to consider when performing their gatekeeper role concerning the admission of expert testimony. Several are aimed at achieving the same examination for peer acceptance of a methodology (but not the outcome reached from that methodology) described in our earlier opinions. [Citations omitted].
In adopting the use of the Daubert factors, we stop short of declaring ourselves a “Daubert jurisdiction.” Like several other states, we find the factors useful, but hesitate to embrace the full body of Daubert case law as applied by state and federal courts. [Citations omitted].
First, we have already broadened our approach to testing for the reliability of expert testimony for certain areas in civil law [citation omitted] but, to date, we retain the general acceptance test for reliability in criminal matters [citation omitted]. Second, there is no monolithic body of case law uniformly or even consistently applying Daubert, as others have noted. [Citations omitted]. We hesitate to sweep in adherence to the various approaches taken among the circuits and state jurisdictions when applying the Daubert factors. Thus, we do not adopt a “standard” that we cannot fully discern in its application at this time. While the factors are helpful, and while individual cases may be persuasive in appropriate settings, we cannot ignore that there are discordant views about the gatekeeping role among Daubert jurisdictions. [Citations omitted].
Our view of proper gatekeeping in a methodology-based approach to reliability for expert scientific testimony requires the proponent to demonstrate that the expert applies his or her scientifically recognized methodology in the way that others in the field practice the methodology. When a proponent does not demonstrate the soundness of a methodology, both in terms of its approach to reasoning and to its use of data, from the perspective of others within the relevant scientific community, the gatekeeper should exclude the proposed expert testimony on the basis that it is unreliable. [Citations omitted].
[In re Accutane, at pp. 80-84] ***
The Court’s opinion is a long-awaited clarification of the New Jersey standard. Although the Court stopped short of declaring New Jersey a “Daubert jurisdiction” for civil cases because of some of the variations in jurisdictional application/precedent, the Court expressly adopted the use of the Daubert factors and demonstrated its alignment with the Daubert rationale.