On August 20, 2002, the New Jersey Supreme Court in a 4-to-3 decision held that it was plain error for a trial court not to conduct an evidentiary hearing to determine the reliability of the expert’s testimony before excluding expert witness testimony. Delisha Kemp and Debra Wright v. State of New Jersey et al., 2002 WL 1901333 (A-80-00). In so holding, the Court extended to all cases involving issues of causation, the relaxed standard for admissibility of expert testimony which previously had been applied only in toxic tort cases.
The plaintiffs contended that the minor plaintiff contracted Congenital Rubella Syndrome as a result of her mother having received a rubella (“German Measles”) vaccination while pregnant. The plaintiffs offered the opinion of a medical expert that the vaccine caused the disease. The trial court, with the Appellate Division affirming, granted defendant’s motion for summary judgment which challenged the reliability of the opinion. The challenge was based largely on the expert’s deposition testimony. The Supreme Court reversed, holding that an in limine hearing should have been conducted before the motion was granted.
The Court held that New Jersey Rule of Evidence 702 (which is identical to the federal rule) requires that, in order for an expert’s opinion to be admissible, 1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; 2) the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable; and 3) the witness must have sufficient expertise to offer the intended testimony.
Focusing on the second requirement, the majority stated that, in the past, a “general acceptance” test had been applied to expert testimony, and this standard required the testimony “to satisfy an extraordinarily ‘high level of proof based on prolonged, controlled, consistent and validated experience.’” In earlier toxic tort cases, the Court held that a theory of causation which had not yet gained “general acceptance” may be found to be “sufficiently reliable” if based on “a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.”
Analyzing New Jersey, Third Circuit, and U.S. Supreme Court decisions, the Court held that in dealing with expert testimony on issues of causation, a court must hold a pre-trial evidential hearing. The Court stated:
[A]lthough the need for a hearing is remitted to the trial court’s discretion, in cases in which the scientific reliability of an expert’s opinion is challenged and the court’s ruling on admissibility may be dispositive of the merits, the sounder practice is to afford the proponent of the expert’s opinion an opportunity to prove its admissibility at a Rule 104 hearing. Id. at pg. 12.
Importantly, the Court addressed the fact that the summary judgment motions was based largely on the expert’s deposition testimony—a fairly common situation. The Court observed that such use of the deposition in this situation deprived the trial court of the “benefit of an orderly and comprehensive presentation of his expert testimony elicited by plaintiffs’ counsel.” As a practical matter, this means that in the future, in order to bar an expert’s scientific opinion at trial, an evidentiary hearing will be necessary. While we routinely file motions to bar expert testimony in many products liability cases, many trial court judges resist conducting such hearings. The Court now insists that the trial courts conduct Rule104 hearings to determine challenges to expert testimony, especially where novel theories are offered. While this may be expensive for the clients, the end result may shorten or even eliminate the need for a trial.