NJ’s Evolving Expert Opinion Standard and its Effect on Multicounty Mass Tort Litigation

Posted in Defective Drugs

On September 2, 2016, New Jersey Superior Court Judge Nelson Johnson issued an Order and Opinion barring Plaintiffs’ experts in the ongoing litigation involving claims against Johnson & Johnson, alleging ovarian cancer caused by the drug maker’s talc products. For those that follow Mass Tort litigation in New Jersey, that decision was significant, but not particularly surprising.

Judge Johnson is one of three judges designated to preside over New Jersey Multicounty Litigations. He is also an accomplished author, best known for his New York Times bestseller, “Boardwalk Empire: The Birth, High Times and Corruption of Atlantic City,” which formed the basis for the popular HBO series. Judge Johnson follows in the footsteps of one of the most revered trial court judges in the state, his Atlantic County predecessor, Judge Carol Higbee, who now sits on the Appellate Division of the New Jersey Superior Court. Like Judge Higbee, Judge Johnson is known for his cerebral, well-written opinions, but that is where the similarities between the two respected jurists end.

Shortly after taking over the docket, Judge Johnson issued several rulings at odds with prior determinations made by Judge Higbee. Notably, on February 20, 2015, Judge Johnson barred crucial Plaintiffs’ causation experts in the long-pending Accutane Multicounty Litigation. Essentially the same expert opinions had already passed muster under New Jersey’s customarily lenient expert opinion admissibility standard set forth in Rubanick v. Witco Chemical Corp., 125 N.J. 421 (1991) and Kemp v. The State of New Jersey, 174 N.J. 412 (2002). However, Judge Johnson disagreed and, after extensive hearings, found that those expert opinions did not meet the New Jersey standard.

Here, in a markedly similar ruling, Judge Johnson has barred crucial Plaintiffs’ causation experts in the talc Multicounty Litigation, notwithstanding the fact that essentially the same expert opinions were instrumental in a February 2016 jury award of $72 million and a May 2016 jury award of $55 million, in a St. Louis, Missouri, trial court. If upheld, this and similar rulings have the potential to eviscerate large swaths of pending Mass Tort cases, and even entire Multicounty Litigations.

New Jersey has traditionally been a jurisdiction of choice for Mass Tort filings. As many large pharmaceutical companies are headquartered in New Jersey, Plaintiffs could file in New Jersey Superior Court without the fear of being removed to a federal Multidistrict Litigation. One of the primary advantages to that would be not having to contend with the strictures of the federal standard on expert opinion, set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Though it will be a while before we know the ultimate effect of the trial court rulings on New Jersey’s evolving standard on the admissibility of expert opinions, it will be interesting to see the short-term effect, if any, of these rulings on Multicounty Litigation applications and filings.