A recent New Jersey Supreme Court ruling has major implications in product liability law, reinforcing that judges must act as “gatekeepers” to ensure expert medical and scientific testimony is scientifically reliable before it reaches a jury.
The unanimous ruling in Beavan v. Allergan is a significant win for New Jersey defense attorneys, as it clarifies all expert testimony in civil cases is subject to the rigorous scrutiny outlined in In re Accutane Litigation. It also provides a clear path for attorneys to challenge expert testimony, prevail at the pretrial stage and obtain summary judgment.
Background of Beaven v. Allergan
Plaintiff Alison Beavan claimed a silicone particulate from an Ozurdex intravitreal injection caused a severe injury that resulted in blindness in one eye. Ozurdex intravitreal injection is a biodegradable implant used to treat adults with persistent eye inflammation caused by conditions such as diabetes or cataract surgery. Allergan had recalled the lot of injectors from which Beavan received the injection due to a defective applicator creating a potential particulate matter.
Beavan offered testimony from two experts who utilized differential diagnosis, a medical methodology that identifies all plausible conditions for an injury and then ruling each out all but one through a process of elimination. Given Beavan had not experienced injury from previous injections but did after receiving the injection from the recalled lot, both experts relied on the relationship between the injection from the recalled lot and the plaintiff’s symptoms, despite never seeing a silicone particulate in the plaintiff’s eye.
Allergan moved to exclude the experts, arguing their theories were unsupported and were inadmissible as net opinions which lack a valid factual foundation or a properly explained methodology.
The trial court denied Allergan’s motion, but the Appellate Division reversed, saying the experts’ causation theories would not meet rigorous Daubert standards used by trial court judges to assess the reliability and relevance of expert witness testimony before it is presented to a jury. Those standards were tightened in New Jersey’s landmark 2018 In re Accutane Litigation decision, which directed trial judges to incorporate the rigorous federal Daubert factors.
Supreme Court Decision
The Supreme Court rejected Beavan’s argument that using differential diagnosis to prove causation independently establishes the admissibility of expert opinion. The court ruled judges should be gatekeepers and the Accutane gatekeeping framework “applies to all civil cases in which the parties dispute the reliability of expert testimony under N.J.R.E. 702 and 703.”
That framework includes:
- Testability: Can the scientific theory or technique be tested?
- Peer Review: Has the theory or technique been subjected to peer review and publication?
- Error Rate: What is the known or potential rate of error of the technique?
- Standards and Controls: Do clear standards and controls exist for applying the method?
- General Acceptance: Is the theory or methodology widely accepted within the relevant scientific or medical community?
While meeting all components of this framework are not mandatory, the ruling reinforces judges should rigorously review expert testimony before it can be admitted to a jury. It does not feel the Daubert standards stressed in Accutane were applied in Beavan v. Allergen.
While the Appellate Division awarded summary judgment, the Supreme Court, in its decision, remanded the case to the trial court, strongly encouraging the trial court to conduct a hearing that applied the Accutane factors to a differential diagnosis conclusion.
The court then offered a blueprint for doing that, saying it should first assess the methodology by which an expert comes to a particular cause versus other plausible causes, then scrutinize the reasons for rejecting the other causes, looking for scientific methods and procedures.
This blueprint is valuable for defense attorneys facing expert testimony in New Jersey product liability cases. Challenging expert testimony is a quick path to summary judgment in product liability cases. Harris Beach Murtha’s Medical and Life Sciences Industry Team frequently handles such cases and our attorneys are analyzing the decision for future use.
If you need assistance with a case or have questions, please reach out to attorney Kelly Jones Howell at (212) 912-3652 and khowell@harrisbeachmurtha.com; attorney Marina Plotkin at (212) 313-5409 and mplotkin@harrisbeachmurtha.com; or the Harris Beach Murtha attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach Murtha’s lawyers and consultants practice from offices throughout Connecticut in Bantam, Hartford, New Haven and Stamford; New York State in Albany, Binghamton, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Long Island and White Plains; as well as in Boston, Massachusetts, and Newark, New Jersey.