Junk Science

Since the New Jersey Supreme Court its issued its decision in 1991 in Rubanick vs. Whitco Chemical Corp., 125 N.J. 421 (1991), New Jersey has had an open-door for toxic tort cases asserting novel claims testing new theories of liability.  The Rubanick decision, which is often referred to as the “Junk Science Case”, allowed creative attorneys to file and pursue unique causes of action claiming that exposure to toxic tort substances led to a variety of health maladies.

The Court in Rubanick made the bold determination that toxic tort cases should be exempted from the common acceptance standard when an expert tries to connect an exposure to an injury.  As a result of Rubanick, experts have been allowed to render opinions as to causation that are unique, controversial and not commonly accepted, so long as the expert considered information which experts in the field generally rely upon and that expert has the requisite background, training, experience and familiarity with the subject matter.  Specifically, in Rubanick, the Court permitted Plaintiff’s pathology expert to testify at trial that daily exposure to PCB could lead to colon cancer, an opinion not widely accepted in the scientific community.

Daubert Standard

Since 1993, most states have followed the Daubert standard set forth in the U.S. Supreme Court 1993 decision, Daubert vs. Merrell Dow Pharmaceuticals.  509 U.S. 579 (1993)  The so-called Daubert standard is actually a list of factors that trial judges should consider when determining if a proposed expert testimony is based on “scientifically valid” methodology.  These factors include:

  • Whether the expert’s theory or technique has been tested;
  • Whether the theory or technique has undergone peer review and publication;
  • The known or potential error rate of the theory or technique; and
  • Whether the theory or technique has attracted “wide-spread acceptance” within the relevant scientific community.

Unlike Rubanick, the Daubert Court found that the theory is the primary consideration not the basis by which an expert comes to a theory, regardless of what that theory may be.  Up until this month, New Jersey refused to adopt Daubert.

In Re Accutane

On August 1, 2018, the New Jersey Supreme Court issued its In Re Accutane decision wherein the Court said it adopted the Daubert factors, but “stopped short of the declaring” the state a Daubert jurisdiction.  In particular, the Court said judges in this state should continue to emphasize the importance of a “methodology-based approach to reliability for expert scientific testimony” that requires proof that a given theory or technique has received “general acceptance in the scientific community.”  This seems to aver that finally the ultimate opinion of the expert should be subject to scrutiny in New Jersey and not just the manner in which the expert arrives at a final opinion.  If this is the case, this decision is momentous.  For those defending such claims, we can now aggressively challenge the experts with respect to opinions that are out of the mainstream that are void of wide-spread support.

Going Forward

Although the Supreme Court’s ruling directly applied to a mass tort case, its decision indicates that the Daubert will now apply to expert testimony in all types of New Jersey civil cases.  The upshot of this is that New Jersey trial judges are under a strengthened mandate to keep “junk science” out of the courtroom and away from juries.  Experts may be limited to theories that are generally accepted and will be unable to waiver from the mainstream.

If you have any questions of how the Court’s decision may expect your interest in current or future civil litigation, contact Marc Gaffrey at mgaffrey@hoaglandlongo.com or call (732) 545-4717 today.